■•■■> 
 
 CORNELL LAW LIBRARY 
 
EM 
 
Cornell university Library 
 KF 940.E26 1893 
 
 A treatise on the law of baHS!,?,^* 
 
Cornell University 
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 tine Cornell University Library. 
 
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 http://www.archive.org/details/cu31924018857684 
 
A TREATISE 
 
 LAW OF BAILMENTS, 
 
 CONTRACTS CONNECTED WITH 
 
 THE CUSTODY AND POSSESSION 
 
 Personal Property. 
 
 BY ISAAC EDWARDS, LL. D. 
 
 THIRD EDITION REVISED AND ENLARGED 
 
 BY 
 
 EDWIN BAYLIES. 
 
 THIieiD EDITIOIST. 
 
 BANKS^ & BROTHERS, 
 
 NEW YORK. ALBANY, N. Y. 
 
 1893. 
 

 ^.a^i^i if^ 
 
 Entered according to Act of Congress, in the year one thousand eight hundred and fifty-five, 
 
 by 
 
 GOULD, BANKS & CO., 
 
 In the Clerk's Office of the District Court of the Northern District 6f New York. 
 
 Entered according to Act of Congress, in the year eighteen hundred and seventy-eight, by 
 
 BANKS & BROTHERS, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 Entered according to Act of Congress, in the year eighteen hundred and ninety-three, by 
 
 BANKS & BROTHERS, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
TREATISE 
 
 UX THE 
 
 LAW OF BAILMENTS. 
 
 CHAPTER I. 
 
 ON BAILMEKTS. 
 
 § 1. The delivery of goods in trust for a specific purpose, termed a 
 bailment, is a species of contract frequently implied by law. The con- 
 tract results from the delivery of the goods for a particular use or pur- 
 pose. According to Mr. Justice Blackstone, " Bailment, from the French 
 bailler, to deliver, is a delivery of goods in trust upon a contract, 
 express or implied, that the trust shall be faithfully executed on the 
 part of the bailee." ^ According to Sir William Jones, it is " a delivery 
 of goods in trust on a contract, expressed or implied, that the trust 
 shall be duly executed, and the goods redelivered as soon as the time 
 or use for which they were bailed shall have elapsed or be performed." ^ 
 This definition, accurate so far as most kinds of bailment are concerned, 
 has been criticised as defective, because it does not include chattels 
 delivered for sale, or under such circumstances that a return of them 
 is not contemplated. Indeed, it is not easy to express in a single 
 sentence all those conditions, and those only which accompany every 
 case of bailment. Mr. Justice Story defines bailment as " a delivery of 
 things in trust for some special object or purpose and upon a contract, 
 express or implied, to conform to the object or purpose of the trust." ' 
 
 On the other hand, Kent gives this definition : Bailment is a delivery 
 of goods in trust, upon a contract expressed or implied that the trust 
 
 1 2 Black. Comm. 452. ^ jones on Bailm. 117. " Story on Bailm. § 2. 
 
2 Law of Bailments. 
 
 shall be duly executed and the goods restored by the bailee as soon as 
 the purpose of the bailment shall be answered.^ 
 
 § 2. These definitions agree in nearly all essential particulars, and 
 disagree in two or three respects. Jones and Kent assume that the 
 property is to be returned, while Blackstone and Story include contracts 
 under which no such return is contemplated. This is not merely a 
 difference in the form of expressing the same meaning. Story intends 
 to include among contracts of bailment a delivery of goods for sale ; 
 and Kent intentionally limits his definition so as to exclude that species 
 of contract. 
 
 A delivery of merchandise to a factor for sale constitutes the relation 
 of principal and agent ; but the right of the principal to prescribe the 
 terms and time of the sale gives to the contract, expressed or implied, 
 between the parties, the elements of at least one species of bailment. 
 If the owner directs the factor to hold the goods until further orders, 
 the relation of the parties thereupon arising can hardly be distinguished 
 from the relation subsisting between bailor and badee.^ There are 
 also instances of the delivery of goods under a commission," not to 
 speak of the delivery of goods to a carrier for a purchaser residing at a 
 distance, in which a return of the property is not contemplated.^ 
 
 A perfect definition ought to include everything essential in every con- 
 tract of bailment, and should exclude everything which is not essential. 
 Among other things, it should contain a description of the kind of 
 property which may be the subject matter of the contract. In general 
 terms, it may be said that the delivery of goods or any other species of 
 personal estate for use, keeping or on some other trust, where the gen- 
 eral property does not pass, creates a bailment. A delivery of chattels 
 upon a sale made on condition that the title shall pass on the payment 
 of the purchase money at a future day, is something more than a bail- 
 ment ; it gives the buyer a conditional title.* If the contract gives the 
 buyer a definite credit or a reasonable time within which to pay, it gives 
 him a transferable interest in the chattels until the credit expires, and 
 the property in them as soon as he pays the price.^ 
 
 ^ Kent's Comm. 55S. 
 
 2 Per Lord Holt, in Coggs v. Bernard, 2 Ld. Eaym. 917, 918; Morss v. Stone, 5 
 Barb. 516. The delivery of a chattel to another under a contract that the latter shall 
 safely keep, and if possible, sell it for the owner before a certain day at not less than 
 a price specified, and if not, should return it in good condition, constitutes a bailment. 
 Middleton v. Stone, 111 Pa. St. 589. 
 
 s Jourdan v. Eeed, 1 Clarke (Iowa), 135; the case of a delivery of gold to be delivered 
 to the bailor's wife. 
 
 * Hasbrouck v. Lounsbury, 26 N. Y. 598. 
 
 6 Bailey v. Colby, 34 N. H. 29; Vincent v. Cornell, 13 Pick. 294. The contract gives 
 
On Bailments. 3 
 
 A bailment of choses in action may be created where the title passes 
 in form to the bailee ; ^ certificates of stock are daily given in pledge 
 by a formal transfer of title — a transfer being the only way in which 
 such property can be delivered. Tlie absolute title, that is, the general 
 property in the stock or in the choses in action, does not pass.'' 
 
 The contract of bailment is very often implied from the circumstances 
 attending the delivery of the goods. The usual definition assumes 
 that there is a contract, either expressed or implied, in every bailment ; 
 and it is clear that the bailee is held bound to the performance of his 
 duties on the theory of contract. There are cases, it must be admitted, 
 in which there is an apparent want of consideration ; e. g., where one 
 loans a chattel gratuitously for an indefinite length of time ; or where 
 one man accepts the custody of property to keep or to carry without com- 
 pensation. In reality the contract in each of these cases is executed on 
 part of the bailor ; he has delivered the property ; and it remains execu- 
 tory on the part of the bailee. The consideration is valid, though it be 
 not beneficial to the party promising ; and the contract having been partly 
 executed is valid, notwithstanding the election given to one of the parties 
 to withdraw from it or to terminate it." Hence there is nothing in the cir- 
 cumstance that the gratuitous lender has the right to terminate the agree- 
 ment and take back his property, or in the fact that the depositary with- 
 out reward has the right to restore the goods and thus put an end to his 
 liability, to repel the theory of a contract. On the contrary, these rights 
 assume the existence of the contract and grow out of it.* 
 
 § 3. Authors of received authority on the subject generallj'- specify 
 five sorts or classes of bailment, which are defined as follows : 
 
 1. Depositum, that is, a simple delivery or deposit of goods, to be 
 kept and returned without recompense. The depositary is here under 
 but a limited liability, being answerable only for gross neglect. As he 
 receives no reward for the service, the law does not render him respon- 
 sible for anything more than the ordinary care which he bestows upon 
 his own property of a similar nature. 
 
 2. Mandatum, or commission, is a species of bailment where the 
 
 no title where the goods are delivered on a condition that they are to remain the 
 seller's property till paid for. Ballard v. Burgett, 40 N. T. .314; Austin t. Dye, 46 
 N. Y. 500 ; Cole v. Mann, 62 N. T. 1 ; Kodney Hunt Machine Co. v. Stewart, 57 Hun, 
 545; Frank v. Batten, 49 Hun, 91. 
 
 1 Campbell v. Parker, 9 Bosw. 322, relates to the pledge of a bond and mortgage. 
 
 2 Wilson V. Little, 2 IST. Y. 443. 
 
 'Rutgers V. Lucet, 2 John. Cas. 92; Miller v. Drake, 1 Gaines, Eep. 45, 46; Giles 
 V. Bradley, 2 John. Cas. 253, 254; Towers v. Barrett, 1 Term Rep. 133. 
 ^ Orsen v. Storms, 9 Cowen, 687; Roulston v. M'Clelland, 2 E. D. Smith, 60. 
 
4 Law of Bailments. 
 
 bailee receives goods, and without reward undertakes to do some act 
 about them, or simply to carry them. This kind of undertaking does 
 not differ materially from that of the bailee in the case of deposit; the 
 duties and liabilities arising out of it are very similar. The actual en- 
 trance upon the work to be performed is the ground of liability, since 
 an executory contract of this nature cannot be enforced, wanting, as it 
 does, the essential ingredient of a consideration promised or received.^ 
 
 3. Oommodatum is the loan or bailment of goods to be used for a cer- 
 tain time and then returned to the owner, and is made for the accommo- 
 dation of the bailee ; as the loan of a horse or carriage, from which the 
 owner derives no benefit. 
 
 4. Property delivered in pledge for debt, pignori acceptum, is a bail- 
 ment in the nature of collateral security. The title remains in the 
 pledgor, so that under our statutes it may be levied upon and sold as his 
 property, but after the sale, the pledgee is entitled to the possession of 
 it until the purchaser redeems it from him. At common law, however, 
 goods pawned or pledged are not liable to be taken in execution in an 
 action against the bailor ; ^ and the special property of the pavtTiee gives 
 him a right of action against the of&cer who assumes to take them,' and 
 even against the owner himself who wrongfully attempts to repossess 
 them.* For the purposes of the pledge he acquires a paramount right 
 over the property, and is responsible for ordinary neglect. If he con- 
 vert the property to his own use, or dispose of it in any manner con- 
 trary to the trust, he is liable to the owner for its value.^ 
 
 Goods are delivered in pledge for the mutual benefit of the parties to 
 the contract ; and hence the responsibility of the pledgee is the same as 
 that of the bailee for hire. He has an advantage from the security it 
 furnishes him for the payment of his demand, and the owner of the 
 things pledged gains a credit; so that in the eye of the law the parties 
 stand upon an equal footing. 
 
 5. A hiring," termed in the civil law locatio conduction is a bailment of 
 goods always for a reward, and includes the hire of things for use, loca- 
 tio rei ; the hire of deposit or storage, locatio custodiw ; hire of labor and 
 services to be performed on the goods dehvered, locatio operis-faciendi ; 
 and hire of carriage, locatio operis mercium ve/icndarum. Hire for use, 
 such as hiring horses and carriage for a journey, is a bailment of prop- 
 
 1 Thorne v. Deas, 4 John. Eep. 84. 
 
 2 Steif V. Hart, 1 Comst. K. 20, and cases cited by Jewett. J. 
 * 5 Binney, 457. 
 
 ■* Mills T. Stewart, 5 Humph. R. 308. 
 
 ^ Jones on Bailm. 121, 
 
 « Jones on Bailm. 86; and Story on Bailm. § S. 
 
On Bailments. 5 
 
 •erty which renders the bailee responsible for ordinary neglect.^ The hire 
 of deposit, such as the storage of goods by commission merchants and 
 warehousemen,^ concerns the custody, and requires ordinary diligence in 
 the bailee. Innkeepers, from motives of public policy, are held to a 
 much higher responsibility. Where work is to be done on the property, 
 as where cloth is left with a tailor to be made into clothes, or logs at a 
 saw mill to be converted into boards, it is termed a bailment for labor 
 and services, and the bailee is liable for ordinary neglect. In such 
 ■cases there is an implied contract that the work shall be done in a work- 
 manlike manner. The hire of carriage, or transportation of goods by a 
 ■common carrier, is such a bailment of goods as renders the bailee liable 
 for them without any neglect, unless the loss be caused by inevitable 
 accident, by public enemies, or by the act of the owner of the property. 
 The policy of the law holds him to a strict accountability, and makes 
 him in effect an insurer of the goods.' x 
 
 § 4. The various degrees of liabihty imposed on the bailee are grad- 
 uated by the circumstances attending the trust. He that borrows his 
 friend's horses or books, clearly is in honor bound to take vigilant care 
 of them, so that the lender may not suffer by his kindness ; and the 
 principle that holds the borrower responsible for even a slight neglect of 
 this duty is confusedly just. Every one readily recognizes it as a nat- 
 ural obligation. (So, where the owner of property deposits it with his 
 neighbor, who receives it into his house or store without pay, and solely 
 as an accommodation, it is plain that, if he take the same care of it 
 as he does of his own goods, nothing more can in fairness be demanded 
 of him. Unless he be guilty of gross neglect, which is morally as well 
 as legally a breach of good faith, he ought not to be responsible for lossT] 
 The rule of equity is the rule of law in such a case. Every man is 
 bound under all circumstances to deal honestly, and that is the limit of 
 his responsibility as a mere depositary. Where, however, he volun- 
 tarily and oflaciously proposes to keep the goods of another, there is a 
 sound reason why he should be held to a stricter liability, since by his 
 own act he may have prevented them from being stored in safety. If 
 he press himself into the undertaking, or make an express agreement to 
 keep them safely, he must, in honesty, exercise ordinary prudence in 
 its fulfillment. 
 
 When the relation so far changes that both parties derive an advan- 
 tage from the contract, it is easy to perceive that the Uability must change 
 
 1 Milion V. Salisbury, 13 J. K. 211. 
 
 2 Knapp V. Curtis, 9 Wend. 60. 
 
 « 12 Mod. 482; Jones on Bailm. 108; Forward v. Pittard, 1 Term Kep, 27; Hyde 
 V. The Trent & Mersey Kavigation Co., 5 Term Eep. 389. 
 
6 Law op Bailjients. 
 
 proportionably ; as where property is hired to be used, and a compensa- 
 tion is paid for the use. Here there is no inequality between the owner 
 and him who receives the property in trust. The price of the hire bal- 
 ances the use, so that neither owes to the other any special obligation. 
 The contract between them is one of ordinary business, from which both 
 derive a benefit of profit or convenience. In the employment of property 
 received under such circumstances, it is obvious that the hirer can only 
 be held responsible for the use of ordinary care and common prudence 
 in its preservation. It has sometimes been said, that he is bound to the 
 exercise of all imaginable care of goods so received ; but the rule does 
 not go so far.^ If he exercise the common vigilance which the gener- 
 ality of mankind take of their own property, it will protect him from 
 liability. In the absence of an express agreement, the law implies 
 nothing strained or unreasonable ; it is satisfied with_ the usual and 
 ordinary care incident to the custody of another's goods. 
 
 In the negotiation for hire, it is presumed that a fair price was given 
 for the use of the thing hired, and that the hirer rmdertook to keep it 
 with reasonable care. ISTothing extraordinary, as to the manner of keep- 
 ing or using it, can be presumed to have entered into a contract so 
 common. 
 
 Property received with a commission or authority to do some act in 
 relation to it, as when one receives money to use in a particular way, 
 imposes the palpable and plain duty of faithfully executing the trust. 
 Though no compensation be paid for the service, the commission must 
 be faithfully executed, and the person undertaking it is understood to 
 stipulate that he will exercise the necessary labor and skill in its execu- 
 tion. Receiving no recompense, if he undertake and execute the trust 
 in good faith, he cannot be held responsible for the issue of the business. 
 He must act with prudence, doing nothing by which his employer may 
 suffer damage, and omitting to do nothing which the nature of the act 
 requires.^ The profession or business of the employee, it is true, may 
 sometimes affect his liability. 
 
 One who takes property in pledge for a loan of money or a debt due, 
 as well as he who receives it with the view of bestowing labor upon it 
 
 1 Jones on Bailm. 86, speaks of the rule with his usual neatness of phrase as estab- 
 lished by the harmonious consent of nations. 
 
 2 Jones on Bailm. 53. If one, with whom money has been left to be paid over to 
 a third person on his leaving certain instructions for the benefit of the bailor, exercises 
 the care and prudence that would be exercised ordinarily by a careful business man 
 before paying over the money, he fulfills his legal obligations to the bailor. Cannon 
 Kiver Manuf's. Assoc, v. Faribault Bank, 37 Minn. 394. In case of gratuitous bail- 
 ments the bailee is liable only when chargeable with gross neglect. Ouderkirk 
 V. Central Nat. Bank, 119 N. T. 263. 
 
On Bailments. 7 
 
 in order to make it more valuable, assumes the reponsibility of keeping 
 it safely. The ground of liability in each case seems to be the trust 
 reposed in the person who receives the property. The manufacturer 
 receiving wool to be converted into cloth, upon an agreement for com- 
 pensation, retains a lien upon the goods until it is paid. The custody is 
 equally for the benefit of both parties. So also in the case of pledging ; 
 the contract is one of reciprocal advantage. The debt perhaps is con- 
 tracted on the understanding that the property shall be taken in pledge 
 for its payment ; or the debt being due, its payment is postponed on the 
 receipt of the pledge. The one party gains a credit and the other 
 security by the contract. The principle of liability is therefore the 
 same as in a hiring for use, and the bailee is responsible for ordinary care, 
 and for every departure from the terms of the agreement. It is also a 
 rule of law, as well as of common equity, that whatever is accessary to 
 the thing pledged shall accrue or be applied to the benefit of the owner ; 
 if it be a bond and mortgage, the interest growing duQ on them shall 
 be credited to him on the debt for which they are in pledge. 
 
 The common carrier's UabUity, grounded on the hire he receives, is 
 extended by the policy of the law much beyond that of an ordinary 
 bailee. His agreement to carry and deliver the goods at the place of 
 destination may be discharged without performance only in three in- 
 stances, namely, when they are destroyed by the act of God, by public 
 enemies, or by the conduct of the owner himself. The reason of this 
 rule, it is said, is the public employment exercised by the carrier, and 
 the danger of his combining with robbers, to the infinite injury of com- 
 merce and extreme inconvenience of society.^ 
 
 The difficulty of following the property, and in case of loss establish- 
 ing by evidence the liability of the carrier, seems to be the true ground 
 of the rule ; especially since it matters little what principle prevails, so 
 long as the parties to the contract made their agreement with reference 
 to it. The added liability of an insurer, being perfectly understood, is 
 taken into the account in fixing the price of transportation ; thus in fact 
 the law is stringent in its requirements and at the same time just. It is 
 made the interest of the person having the custody of the goods to keep 
 and convey them safely, so that the carrier, on whom rests the duty, 
 has the interest in and the means of carrying them safely to the place 
 of delivery. No other principle, it may be safely asserted, would so 
 completely unite commercial convenience and economy with the strict 
 demands of private justice. 
 
 1 Jones on Bailm. 107; Forward v. Pittard, 1 Term E. 27; Hollister v. Nowlen, 19 
 Wend. 234, 238. 
 
8 Law op Bailments. 
 
 The common carrier is by virtue of his occupation a servant of the 
 public, whose duties and responsibilities are regulated with a view to 
 the promotion of the interests which he serves, and are founded upon 
 universal rules of commercial policy. These rules, that have grown up 
 out of usages and customs handed down from the rudest periods, have 
 been corrected and qualified by the experience and wisdom of each 
 succeeding age, so as to form at the present time a singularly consistent 
 system of law. 
 
 Innkeepers are in like manner and to a like extent liable for the goods 
 of guests stopping with them. In the usual language of the books they 
 are insurers of the property, and nothing but the act of God or public 
 enemies will excuse a loss.^ In consideration of exercising the public 
 business of innkeepers, they are bound to receive and entertain strangers 
 and travelers, and answer for their goods. In part requital of this un- 
 usual liability, the landlord has a lien on the goods for his reasonable 
 charges. The relation of landlord and guest, however, must exist be- 
 fore either the lien or liability can arise.^ Indeed, the lien and liability 
 are coincident, the one supporting the other, and both standing and fall- 
 ing together. The extraordinary responsibility of an innkeeper, like 
 that of a common carrier, is based on a prtuciple of jpublic policy, sus- 
 tained by motives of general utility. The stranger cannot be supposed^ 
 to have at his command the means of showing the precise negligence 
 by which his goods may have been lost. He is compelled to trust to 
 the care of others, without having the means of ascertaining personally 
 the prudence and care of those to whom he confides his property. And 
 hence the law wisely casts upon the landlord the burden of answering 
 for the loss against which he has the best means of providmg. The 
 presumptions of the law are thrown against him, in order that his in- 
 terest may stimulate his vigilance in the safe keeping of property com- 
 mitted to his custody. ) 
 
 While there is no injustice in this rule, since the innkeeper carries 
 on his business with a perfect knowledge of his liability, there is at the 
 same time the highest public convenience. The exhausted traveler 
 sleeps in security under a watchful care, presided over and enforced by 
 a strict law. 
 
 The several degrees of diligence required of the bailee m the care of 
 property uistrusted to him under different circumstances, and the kinds 
 of negUgence for which he may become liable, require to be carefully 
 
 1 Grmnell v. Cook, 3 Hill, 488; Coskery v. Nagle, 83 Ga. 696. Mason v. Thompson, 
 
 9 Pick. 280; Berkshire Woolen Co. v. Procter, 7 Cush. 41V. This is the rule at com- 
 mon law. 
 
 ^Healey v. Gray, 68 Me. 489. 
 
On Bailments. t) 
 
 marked and fixed in appropriate terms. The language of the law must 
 have a uniform standard value, a sort of technical and scientific precis- 
 ion. In ordiaary speech, it ts sufficient to say that thejDerson having 
 the custody^ of property must keep it with diligence ; but it will not 
 suffice in legal reasoning. Its meaning varies and is relaxed or intensi- 
 fied too much, according to notions of responsibility entertained by 
 the person using it. The idea expressed by it is not a fixed quantity, 
 but rather a quality of attention, differing as much as men differ in the 
 care they take of property entrusted to them. It varies also in respect 
 to the object in reference to which it is employed. 
 
 § 5. Stated in affirmative form, these several degrees or measures of 
 diligence commend themselves to universal acceptance ; they are the 
 dictates of reason; they rest upon the solid basis of sound morality; 
 and they have been approved and established by a long course of decis- 
 ions. 1. A mere depositary, who receives into his custody goods or 
 chattels for the owner's accommodation, as an act of favor or friendship, 
 is bound to take the same care of them as he does of his own property 
 of a like kind. A mandatary acting gratuitously is bound to the same 
 rule, of diligence. In the absence of any special agreement, the law im- 
 plies an imdertaking by each to keep the property, under ordinary cir- 
 cumstances, with as much care as he does his own. 2. A bailee under a 
 bailment which is mutually beneficial to the parties, is required to use 
 ordinary diligence to preserve the goods entrusted to him ; namely, that 
 care which prudent men take of their own property ; or that care which 
 reasonable men use in their own business. The law exacts greater 
 diligence from the bailee deriving a benefit from the contract, because 
 his engagement is made in the ordinary course of business. 3. When 
 the bailee alone derives a benefit from the bailment, he is bound to use 
 great vigilance and extraordinary care in the use and safe-keeping of 
 the property. As a borrower, receiving the use of goods or chattels 
 gratuitously, he must preserve and return them with very great care. 
 
 § 6. It is customary to state the rules of liability in a negative form. 
 E. ff., it is usual to state the degree of negligence for which bailees, in 
 these several classes of bailment, are liable. As usually stated, these 
 rules stand as follows : 1. A gratuitous depositary of goods is liable for 
 their value, when they are destroyed or lost through his gross negli- 
 gence ; or by his omission or neglect to take the same care of them 
 which he takes of his own property of a similar kind. 2. The bailee 
 for hire, or for some beneficial consideration, is responsible for losses 
 arising through ordinary negligence, or by his omission to ta^^e that care 
 of the goods entrusted to him which prudent men take of their own prop- 
 erty. 3. The borrower who receives the use of goods gi-atuitously. 
 
10 Law of Bailments. 
 
 is liable for their loss or injury through slight neglect, or by the failure 
 to use that diligence which very circumspect and thoughtful persons 
 use in preserving their own goods. 
 
 § 7. Does the law recognize these three degrees of negligence ? Xo 
 one denies that there are differing degrees of negligence, or that the 
 law takes notice of them ; nor does any one deny the liability of a bailee 
 for slight negligence, where like a borrower he alone is to receive a ben- 
 efit from the bailment ; nor is it denied that the bailee is liable for ordi- 
 nary negligence, where the bailment is mutually beneficial to the parties ; 
 neither does any one deny the liability of a gratuitous bailee for gross 
 negligence. But the classification has been called in question ; it has 
 been doubted whether the terms " sUght, ordhiary and gross negligence 
 can be usefully applied in practice." It has even been questioned 
 whether there is any intelligible distinction between negligence and 
 gross negligence, on the notion that, the addition of the epithet gross 
 is mere matter of vituperation which adds nothing to the sense.^ The 
 justness of these criticisms may well be conceded, so far as they call in 
 question the suf&ciency of these terms ; siace in their ordinary use they 
 are really terms of comparison. In legal language, as in conversation, 
 they are used with implied reference to what the situation calls for — 
 with implied reference to the afiELrmative duty required under the cir- 
 cumstances.^ 
 
 They are recognized by a long course of decisions ; they are used to 
 express a rule of law constantly administered in our courts ; and they 
 are perhaps as definite and certain as the rule itself. An assignment 
 for the benefit of creditors, relieving the assignee or trustee from liabil- 
 ity for losses not caused by willful misfeasance or gross negligence, is 
 fraudulent in law ; because the law holds the trustee to a higher degree 
 of responsibility, and does recognize the different degrees of negligence. 
 RuGGLES, Cri. J: "These distinctions are sufiiciently obvious to the 
 miad in theory ; but it must be admitted that their practical application 
 
 1 Steamboat New World v. King, 16 How. U. S. 409; Hinton v. Dibbin, 2 Adolph 
 & Ellis, N". E. 646; Perkins v. X. Y. Central E. R. Co., 24 N. Y. 207; Wilson v. Brett, 
 
 11 Mees. & Welsb, 113; Briggs ^. Taylor, 28 Vt. 1S5. See ilarks v. Hudson Eiver 
 Bridge Co., 103 N. Y. 28, 35, 36;, New York Cent. E. E. Co. v. Lockwood, 84 U. S. 
 357. 
 
 2 Philadelphia and Eeading E. E. Co. v. Derby, 14 How. U. S. 486 ; Storer t. Gowen, 
 18 Maine E. 177; Gill v. General Iron Screw Collier Co., LawEep. 1 C. P. 612; Kelsey 
 v. Barney, 12 N. Y. 42.J, 42<.l; Whitney v. Lee, 8 Metcalf, 91. An act which under 
 certain circumstances would be simply negligent, under other circumstances may be 
 grossly negligent. The same act or omission under varying circumstances may con- 
 stitute different grades of negligence. Pegram v. Western Union Tel. Co. 97 N" C. 57; 
 Hunv. Gary, 82 K. Y. 65, 71. 
 
On Bailments. 11 
 
 to particular cases is sometimes difficult. They appear, however, to 
 be well established and generally acknowledged ; and the clause in the 
 assignment which gives rise to the present controversy seems to have 
 been drawn with reference to their existence and practical operation. 
 The assignee is not exempted from accountability for gross negligence, 
 but is exonerated from the consequences of negligence m any inferior 
 degree." ^ 
 
 The rules of pleading are often appealed to as good illustrations of 
 the rules and principles of the common law. The old form of declara- 
 tion in assumpsit against a bailee without reward, alleged among other 
 things that the defendant so negligently and carelessly conducted him- 
 self that through his negligence the goods were lost to the plaintiff. 
 The same allegation was made in an action against a bailee for hire.^ The 
 allegation in both of these cases measures the degree of negligence for 
 which the bailee is liable ; and it tacitly implies that the bailee is liable 
 whenever he has so carelessly and negligently conducted himself that 
 the goods are lost to the plaintiff or injured to his damage. While there- 
 fore the rules of pleading do not in form recognize the different degrees 
 of negligence, they do assume that the law proportions the care required 
 of a bailee to the natural dangers to which the goods are exposed ; and 
 they do fairly imply that the bailee is liable for such carelessness as 
 actually results in a loss, where his negligence is the direct and pro- 
 ducing cause of the loss or injury.'' 
 
 § 8. It is desirable to have these rules of duty and liability imposed 
 by law upon the bailee expressed in terms that convey a uniform and 
 fixed meaning ; and yet every one knows that these and similar terms 
 vary in their signification, from different causes. Used by one person, 
 they do not express exactly the same sense as they do when spoken by 
 another. Men differ in their sense of obligation, so that the same word 
 of duty spoken by different persons does not express a fixed meaning, as it 
 does when spoken with reference to a physical law or fact of natural 
 science. The sense of the terms is also modified by the situation or 
 circumstances in regard to which they are spoken. Ordinary care of 
 one kind of property is not the care required of a different species of 
 property : a package of money requires one kind of care, and a span of 
 
 1 Litchfield v. WMte, 3 Sandf. S. C. R. 545; S. C. 7 K. T. 438. The assignee is 
 chargeable with the care and diligence of a provident owner, and liable for a loss by 
 ordinary negligence. Matter of Dean, 86 N. T. 398. 
 
 « Yates' Pleadings, 246, 250. 
 
 8 The degree of negligence is discussed in Bissell v. TheN. T. C. R. E. Co., 29 Barb. 
 602, 612; S. C. 22 N. T. 258, 305; and in Wells v. N. T. C. E. R. Co., 24 N. T. 181; 
 and in Whitney v. Lee, 8 Met. 91 ; and in Foster v. Essex Bank, 17 Mass. 479. 
 
12 Law of Bailjients. 
 
 horses another. In one community the danger of loss from theft may 
 not be very great ; while in another, being much greater, it calls for 
 proportionate vigilance. Ourt)anks and safety deposit companies, with 
 which negotiable bonds and securities are left for safe-keeping, build 
 with a view to defend themselves against dangers of this kind ; they 
 construct their vaults and employ watchmen to defend themselves 
 against losses by robbery ; in some of our cities they even construct a 
 telegraphic wire, so that the burglar unwittingly reports himself and 
 his crime to the headquarters of the police. In other locaUties, where 
 but few securities of this kind are found, and the crime of burglary is 
 scarcely known, precautionary measures of safety like these are rarely 
 taken ; and it would be hardly reasonable to hold the omission to take 
 such measures, proof of negligence. 
 
 § 9. Strictly speaking, the law does not allow neglect of any kind in 
 the execution of a contract.^ Its rule varies only in respect to the care 
 it exacts under varying circumstances. The borrower must be very 
 circumspect and careful of goods and chattels, the use of which he 
 receives gratuitously. The relation in which he stands makes it appro- 
 priate that the law should be construed rigorously agamst him for his acts 
 of neglect. Having received a favor, it is adjudged a great fault in him to 
 be guilty of even a slight negligence through which the confidence and 
 trust reposed in him are converted into an injury to his friend. In 
 effect these differing degrees of neglect are only so many accents of 
 mUdness or severity in which the law, according to the attending 
 circumstances, pronounces the same principle of equity.^ AYhere the 
 contract is one of ordinary business and gainful to both the parties to 
 it, no special care is required, and common prudence will satisfy the rule 
 of liability. And in the case of a naked deposit, without reward, the 
 construction becomes still more favorable to the bailee, whose situation 
 with reference to the goods does not impose upon him the same watch- 
 ful diligence usually bestowed on property stored for hire. In all cases, 
 indeed, there is an admirable and intimate relation between the duty of 
 
 1 Story on Bailm. § 17. 
 
 2 In its true and genuine meaning, equity is tlie soul and spirit of all laws. Positive 
 law is construed, and rational law is made by it : in this, equity is synonymous with 
 justice; in that, with the true sense and sound interpretation of the rule. 3 Black. 
 Comm. 429. 
 
 A sentence from Hooker is very often quoted as expressing the highest idea of 
 abstract and pure law. " Of law no less can be acknowledged than that her seat is 
 the bosom of God, and her voice the harmony of the world; all things in heaven and 
 on earth do her homage, the very least as feeling her care, and the greatest as not 
 exempt from her power." 
 
On Bailments. 13 
 
 the bailee and the consideration he receives as a reward, or as a motive 
 for entering upon the execution of the trust. 
 
 The principles embraced in the law of bailments, origuially in a great 
 measure derived, like our principles of equity, from the civil law, com- 
 pose a system of a somewhat complex nature, involving many nice 
 distinctions, and a great variety and extent of interests. Contracts im- 
 plied by law, manifestly must be modified by the customs and course 
 of trade. Liabilities imposed by public policy, must be enforced w^ith 
 a vrise reference to the conservation of the general interest. 
 
 Engagements of a voluntary nature, fairly entered upon, are to be 
 carried into effect equitably and in good faith ; and the numerous trusts 
 accompanying the delivery and possession of personal property, modified 
 as they are by the circumstances of each case, and guarded by well de- 
 fined principles of law, evidently require a high degree of care in their 
 enforcement. On the principle that no man can be wiser than the law, 
 it is evident that only legal reasoning can be of service in its elucida- 
 tion. The appeal must be constantly made to the reported decisions of 
 the courts, which the great master of English jurisprudence has so hap- 
 pUy termed the witnesses of the law. From a fair canvass of these 
 "witnesses we shall derive the elements and principles which make up 
 the main.body of our laws of bailments.^ 
 
 1 In the infancy of om- common law system, judicial decisions rested solely on the 
 oral testimony of suitors or witan, who bore witness to the judgments which they or 
 theirpredecessors had pronounced. They remembered and recorded them. In progress 
 of time their judgments were committed to writing as records of court, and to give 
 them greater publicity, they were at length put forth periodically in the shape of 
 reports. Warren's Law Studies, 404. See 31 N. T. 290, with reference to the con- 
 struction of a statute. 
 
14 Law of Bailments. 
 
 CHAPTER II. 
 
 DEPOSITS : CONTRACTS INVOLVING THE CUSTODY OF PERSONAL 
 
 PROPERTY. 
 
 § 10. A delivery of goods to be kept and returned without recom- 
 pense, creates a bailment ; it is called a deposit ; the distinguishing feat- 
 ure of the contract is that the keeping be gratuitous. Allowing for a 
 certain difference in the circumstances, the engagement of the depositary 
 is the same in substance as that of the mandatary who receives money 
 or goods under a commission ; each of them acts gratuitously. He 
 receives no compensation for his services.^ 
 
 How then can the parties make or the law imply a valid contract ? 
 The law does not imply a promise from a mere moral obligation ; nor 
 will it enforce a naked promise, such as a promise without consideration 
 to become a mandatary or a depositary.^ But when a person actually 
 enters upon the trust and receives the property into his custody, the 
 confidence reposed in him and his undertaking will raise a sufficient 
 consideration.^ After that he is bound to perform his engagement and 
 execute the trust.* It has been strongly urged that an undertaking of 
 this nature cannot be considered a contract ; though it is admitted 
 that it imposes an obligation to act fairly and with reasonable diligence.^ 
 But the criticism is rather one of form than of substance. The party 
 accepting the trust voluntarily comes under an obligation, and there 
 can be no impropriety of speech in calling such an undertaking a 
 contract." 
 
 1 2 Kent's Com. 560; Code of Louisiana, art. 2900. 
 
 " Edwards v. Davis, 16 John. 281; Thome v. Deas, 4 John. 84; Ehle v. Judson, 24 
 Wend. 97. 
 
 2 Rutgers v. Lucet, 2 John. Cas. 92. 
 * Elsee V. Gatwood, 5 Term. R. 143. 
 5 16 Amer. Jurist, 264-2~5. 
 
 8 Wells V. N. T. C. R. R. Co. . 24 N. T. 181. Although a gratuitous promise to per- 
 form some act with respect to the property of another does not bind the promisor, yet 
 if the act is performed the promisor will be liable for any injury resulting from a 
 want of due care. Melbourne v. Louisville & N. E. R. Co., 88 Ala. 44.3. In some cases 
 it is held that bailments for the benefit of the bailor, such as depositum or mandatum, 
 are founded upon express contract and require the assent of the bailee to make him 
 
Deposits. 15 
 
 It is a contract so far as it goes. It does not bind the depositary to 
 continue in tlie custody of the goods for an unlimited time ; for he may 
 tender them to the owner, giving him a reasonable opportunity to re- 
 move them, and thus terminate his responsibility.^ 
 
 The contract of bailment is very often implied by law from the cir- 
 cumstances attending the delivery of the goods. The usual definition 
 assumes that there is a contract, either expressed or implied, in every 
 bailment ; and it is clear that the bailee is held bound to the performance 
 of his duties on the theory of contract. There are cases, however, in 
 which it is at least doubtful whether the bailor assumes any legal obli- 
 gation; e. g., where he loans a chattel gratuitously for an indefinite length 
 of time. His delivery of the property furnishes a valuable consider- 
 ation for the borrower's promise to use and keep it with the greatest 
 care ; but it does not bind the lender. So where a person finds a chattel 
 and takes it into his custody, he assumes the duty of preserving it ; 
 but does the law imply a contract between him and the owner ? It will 
 probably when the owner comes and receives his property, and thus 
 accepts the benefit of the finder's services.^ 
 
 Where one person receives and uses valuable property of another for 
 a length of time, with the owner's consent, the law presumes a contract 
 of hiring and not a gratuitous loan of the use. And the rule is not dif- 
 ferent where the goods are used by the bailee under the belief that he 
 has acquired the title to them by purchase. A gratuity of considerable 
 value is not to be presumed ; it is to be proved.' There being no spe- 
 cial agreement, the nature of the property, the relation of the parties to 
 each other and the circumstances, will ordinarily decide the question of 
 fact, whether the goods were delivered and used under a contract of 
 hire, or under a gratuitous bailment. 
 
 § 11. It is to be remembered that only chattels personal or things 
 movable, which are capable of being delivered, can properly be made 
 the subject of a bailment by deposit. These include everything that 
 can be put in motion, and transferred from place to place ; all that great 
 class of property which is termed personal estate because it is supposed 
 
 responsible. Heatherington v. Eichter, 31 W. Va. 858. In others it is held that the 
 liability of a bailee for hire is founded on contract, while in the case of a bailee with- 
 out reward there is no contract, and the bailee is liable only for wrongful conduct. 
 Schermer v. Neurath, 54 Md. 491. 
 
 1 Roulston V. McClelland, 2 E. D. Smith, 60. If the owner after notice neglects to 
 remove the property, the bailee may place it on storage at the bailor' s charge. Dale 
 V. Brinckerhoff, 1 Daly, 45. 
 
 ^ Sheldon v. Sherman, 42 N. T. 484, and cases there cited. 
 
 ' Eider v. Union India Eubber Co., 5 Bosw. 85; S. C. 28 IT. T. 379. See Davis v. 
 Gorton, 16 N. T. 255; see also, Culleu v. Lord, 39 Iowa, 302. 
 
16 Law of Bailments. 
 
 to follow the person. 1 Securities of every kind, promissory notes and 
 bills of exchange, and bonds and mortgages may become the subject of 
 a deposit ; '' and so may also title deeds or any chose in action. But in 
 the usual course of business these securities are not often made the 
 subject of this kind of bailment ; and even where they are deposited, 
 the depositary has generally but a slight control over them. Frequently 
 he has the bare custody of the paper, while the owner retains the 
 legal title to it. E. g., if John Doe, having a draft or note payable to 
 himself or order, delivers it to another person to keep, without indors- 
 ing it, the depositary will have simply the custody of the paper.' So 
 where he delivers without transferring a bond and mortgage, the 
 depositary will not have control of the title.* It follows that the effect 
 of the deposit, as well as the duties incumbent upon the depositary, 
 must depend upon the nature and condition of the security ; in other 
 words, upon the extent to which he is entrusted with the property or 
 charged with its preservation. Should the holder of an indorsed note 
 deliver it to a friend to obtain the money on it when it becomes due, it 
 is doubtless his duty to have it duly protested in case it is not paid at 
 maturity.^ 
 
 § 12. Where money is paid into court or placed in the hands of an 
 officer under an order of the court, the title to the money is not changed,. 
 ;ai(l the duties of the depositary are not created, nor are they precisely 
 defined as in ordinary cases by contract.^ The depositary voluntarily 
 accepts the ofB.ce held by him, and he receives the money in the due 
 course of his official duty ; he does not act gratuitously ; he is therefore 
 a bailee for hire, and not a mere depositary. His, responsibility for the 
 
 1 Because personal property is supposed to follow the person, wills and other dis- 
 positions of it must be made according to the law of the testator' s domicil at the time 
 of his death. Parsons v. Lyman, 20 N. T. 103, 112; Moultrie v. Hunt, 23 N. Y. 394. 
 Money may be the subject of the contract. Dustan v. Hodgen, 38 111. 352. 
 
 2 Rutgers v. Lucet, 2 John. Cases, 93. An agent receiving a bill of exchange from 
 another, to be credited to his principal in other transactions, or to be returned, is 
 liable for the amount of the bill where the means of paying it passes through his 
 hands. 
 
 ^ There can be no question on this point; even in the case of a pledge, the paper 
 should be indorsed in order to transfer it. Nelson y. Wellington, 5 Bosw. 178, 187. 
 
 * The security may be assigned by parol, but a delivery is not a transfer of the title. 
 Hooker v. Eagle Bank of R. 30 N. Y. 83, 87. 
 
 ^ It is the duty of a bailee holding the note as collateral security to have it duly pro- 
 tested. Foot V. Brown, 2 McLean, 369; Chitty on Bills, 36.5; Edwards on Bills and 
 Notes, 494, 495. 
 
 ^ Under the 73d rule of our Supreme Court, the surplus moneys arising on a fore- 
 closure sale must be paid over to the treasurer of the county, to await the further 
 order of the court.. Sei.i Parsons v. Travis, 5 Duer, 050. 
 
Deposits. 17 
 
 money is at least equal to (and it may be greater than) that of a bailee 
 for a reward.^ 
 
 When a deposit is made by agreement between parties engaged in 
 litigating the title, the depositary without compensation incurs the 
 usual.liability. His contract is that which he makes it in express terms, 
 or that which the law will imply in the absence of an express agree- 
 ment.^ He is an agent of both parties pending the htigation ; on the 
 termination of the suit, he holds for the owner in the same fiduciary 
 capacity as an ordinary bailee ; * bound to pay over the money or give 
 some reasonable account of it.* 
 
 Paeties. 
 
 § 13. All persons except those who are disabled by law, are capable 
 of contracting. At common law, married women, infants, and persons 
 of unsound or deficient mind, are incapable of binding themselves by 
 contract. Let us consider these exceptions separately, since they stand 
 each upon a distinct ground of reason or public policy. 
 
 1. Under the common law, except so far as it is modified by statute, 
 the legal existence of the wife is merged in that of her husband, and 
 they become one person in law ; the wife no longer capable of bind- 
 ing hersfelf personally by contract or by covenant. The rule is counted 
 droU and harsh in these modern days, and has gradually yielded to a new 
 theory, under which the doctrine of merger in a marriage is repudiated. 
 The old word coverture must therefore be gradually dismissed. At the 
 same time it is but just to remember that the rule had its affirmative, 
 as well as its negative side. The wife's disability was also her shield.^ 
 
 2. Under the earlier enabling acts a married woman might carry on 
 any trade or business on her sole and separate account ; she might sell 
 and convey her separate real and personal property or any part of it, 
 and invest the proceeds in her own name ; and she might bind herself 
 by any contract or covenant of title in reference to her separate real 
 estate, with the same effect as if she were unmarried.'' Applying the 
 same rule of interpretation to the language of the last statute which 
 
 1 Muzzy V. Shattuck, 1 Denio, 233; Supervisors of Albany v. Dorr, 25 Wend. 440; 
 S. C. 7 Hill, 583; U. States v. Prescott, 3 How. U. S. K. 578; Aurentz v. Porter, 56 
 Penn. St. 115; 38 111. 89. 
 
 2 La Farge v. Morgan, 11 Martin, 462, 522. 
 ' Burlians v. Casey, 4 Sand. S. C. R. 707. 
 
 * Parry v. Roberts, 3 Adol. & Ellis, 118; S. C. 30 Eng. C. L. 75. 
 
 5 Wilson V. Burr, 25 Wend. 386; Jackson v. Vanderheyden, 17 John. 167. 
 
 6 Chap. 90 of Laws of 1860, as amended by Chap. 172 of the Laws of 1862 ; KoUs v. 
 DeLeyer, 41 Barb. 208. 
 
18 Law of Bailments. 
 
 has been applied to the acts of 1848 and 1849, and it will be found that 
 the law almost, but not quite, removed the married woman's disability 
 to contract.i gj^e could bmd herself by any contract made in the course 
 of her trade or business. ^ She might purchase real estate on credit 
 and take the title in her own name ; » and she might bind herself for 
 improvements thereon.* 
 
 The rule imder the earlier enabling acts of this State may be 
 stated thus : A married woman might bmd herself by contracts made 
 in her separate business or relating to her separate property ; and such 
 contracts might be enforced in law or equity the same as if she were 
 unmarried. Her other contracts did not bind her personally, but might 
 be enforced m equity against her separate property, provided her 
 intention to change it was stated in the contract.^ 
 
 The rule was hardly satisfactory ; since a married woman carrying 
 on a trade or business might bind herself personally by contracts of 
 purchase or sale, while a married woman who did not thus engage in 
 trade had no such power. The want of uniformity in the rule evidently 
 was not intended ; it grew out of the settled principle of construction 
 that binds our courts to limit the effect of a statute modifying the 
 common law to the words of the statute.' 
 
 Various acts have from time to time been passed conferring addi- 
 tional powers upon married women, until all the disabilities of coverture 
 have been swept away. A married woman may now contract with her 
 husband or any other person to the same extent, with like effect, and 
 in the same form as if unmarried, and she and her separate estate will 
 be liable thereon, whether such contract relates to her separate estate 
 or business or otherwise, and in no case is a charge upon her separate 
 estate necessary. But this does not authorize her to enter into any con- 
 tract with her husband by which the marriage relation shall be altered 
 or dissolved, or which will relieve him from his liability for her sup- 
 port.' 
 
 It will be easy to apply these principles to the contract of deposit. 
 Where the common law remains intact, the married woman cannot 
 render herself liable as a depositary. Receiving goods into her custody 
 without consent of her husband, she does not bind either him or her- 
 
 1 White V. McNett, 33 N". T. 371. 
 
 2 Owen V. Cawley, 36 N". T. 600; Schmitt v. Costa, 3 Abb. Pr. N. S. 188. 
 8 Knapp V. Smitb, 27 N. Y. 277; Draper v. Stouvenal, 35 jN". T. .=i07. 
 
 < Fowler v. Seaman, 40 N. T. 592. 
 
 5 Com. Ex. Ins. Co. v. Babcock, 42 N. T. 613. 
 
 6 Yale V. Dederer, 18 N". Y. 265; S. C. 22 id. 450; Ballin v. Dillaye, 37 ^". Y. 3.5. 
 ' Chap. 381 of Laws of 1884, as amended by Chap. 594 of Laws of 1892. 
 
Deposits. 19 
 
 self; but if the goods come into his custody, or if he voluntarily retain 
 them, knowing the purpose for which they were received, he will be 
 responsible for them.* This is on the principle that where the circum- 
 stances call upon him either to adopt or repudiate her act, it is his 
 duty to act promptly.^ Unless he does so, he certainly cannot be in 
 any better position than one who comes into the possession of goods 
 by finding. 
 
 The wife often acts as the agent of her husband ; but her authority 
 so to act must be shown affirmatively, by direct proof of her authority 
 or by proof of facts and circum.^tances from which it may be inferred.^ 
 It follows that a delivery tu the wife of the bailor is not equivalent to 
 a delivery to him. Where she obtains the goods from a bailee by 
 fraud, an action might formerly be maintained against both husband 
 and wife for the wrong ; but this liabihty would not prevent a recovery 
 by the bailor against the bailee on the contract of bailment.* 
 
 § 14. Persons of unsound mind and memory cannot enter into a 
 binding contract. There are four kinds of persons whom the law rec- 
 ognizes as non compos mentis, and incapable of contracting : 1. Idiots, 
 who are such from birth by a perpetual infirmity. 2. Those who by 
 sickness, grief, or other accident, wholly lose memory and understand- 
 ing. 3. Lunatics, who sometimes have, and sometimes have not under- 
 standing, and are therefore incapable, so long as the infirmity continues. 
 4. Lastly, they that for a time deprive themselves by their own vicious 
 acts, of memory and understanding, as they that are drunken.^ None 
 of these, while so aiflicted, have what is termed discourse of reason. 
 An idiot is one who has not any use of reason, has no understanding to 
 tell his age, who is his father or mother, or what shall be for his profit 
 
 1 Kowing V. Manly, 49 K. T. 192, and authorities cited in the opinion of the court. 
 
 2 Berwick v. Dusenberry, 32 How. Pr. 348. 
 
 8 1 Greenl. Ev. § 185; Goodwin v. Kelly, 42 Barb. 194. The consent of the wife to 
 the taking of her husband's property will not prevent a conviction of the wrong-doer 
 for the larceny. The People v. Cole, 43 K. T., 508. 
 
 * Kowing V. Manly, supra. The common law liability of the husband for his wife's 
 torts rested upon two distinct grounds, viz., 1, his control over her conduct, and 2, his 
 right of property in the goods acquired by her. Eeeves' Domestic Eelations, 71, 148; 
 Mathews v. Fiestel, 2 E. D. Smith, 90; Rowe v. Smith, 45 N. T. 230. In this State a 
 husband is not liable in damages for his wife's wrongful or tortious acts, nor for in- 
 juries to person or property orthe marital relation caused by the acts of his wife unless 
 such acts were done by his actual coercion or instigation; and such coercion or insti- 
 gation must be proved like any other fact. Lasvs of 1890, Chap. 51, § 2. So in this 
 State the husband is not a necessary or proper party to an action or special proceeding 
 to recover damages to the person, estate, or character on account of wrongful acts of 
 his wife committed without his instigation. Code of Civil Procedure, § 450. 
 
 5 Stewart v. Lispenard, 26 Wend. 299. 
 
20 Law of Bailments. 
 
 and loss ; lor he " is not an idiot if lie hath any glimmering of reason, 
 so that he can tell his parents, his age, or the like common matters." ^ 
 Lunatics are such as occasionally labor under fits of insanity, and can 
 enter mto contracts only during lucid intervals. Those who have lost 
 their understanding by calamity, or demented themselves by drunken- 
 ness, are regarded as incapable of discharging the ordinary duties of 
 life. 
 
 An infant is capable of contracting, but cannot bind himself by con- 
 tract ; that is to say, the law gives him the personal privilege of re- 
 pudiating his contract, while it at the same time holds his agreement a 
 sufficient consideration to sustain undertakings made to and with him. 
 As a rule, his contracts are not void, but merely voidable. Until he 
 repudiates them, they remain good. No other person can take advantage 
 of his privilege ; his promises have not in themselves the essence of a 
 contract, that is obhgation, yet they constitute a valid consideration for 
 a mutual promise by another; and also a sufficient consideration for a 
 new promise by the infant, when he shall be capable of making a 
 binding promise.^ 
 
 In respect to his contracts which remain wholly executory, no action 
 to enforce them can be maintained against an infant ; and even where 
 his contract has been partly performed, the law allows him the privi- 
 lege of refusing to go on under it."* In short, he cannot be compelled 
 to perform a contract by virtue of anything contamed in the terms of 
 it.* But where he receives and retains the benefits of the contract on 
 coming of age, he cannot escape from its burdens. He is not allowed 
 to affirm it in part, and reject it as to the residue. ^ If he buys and 
 pays for property, neither law nor equity will suffer him to retain the 
 property and recover back the purchase money.^ 
 
 It is not material here to consider in what cases an infant may bind 
 himself for necessaries and the like ; but it is material to bear in mind 
 
 1 1 Black. Comm. 304. 
 
 2 Mason v. Denison, 15 Wend. 64; ilillard v. Hewlett, 19 Wend. 301; Slocum v. 
 Hooker, 13 Barb. .530; Beardsley v. Hotchkiss, 90 N". Y. 201; Anderson v. Soward, 
 40 Ohio St. 325; King v. Jamison, 2 Mo. App. 584. 
 
 8 Whitmarsh v. Hall, 3 Denio, 3*75. 
 
 * Medbury v. Watrous, 7 Hill, 110. 
 
 5 Henry v. Eoot, 33 N. Y. 526, 530 ; Lynde v. Budd, 2 Paige Ch. R. 191. 
 
 ^ Bartliolomew v. Finnemore, 17 Barb. 428; Kitchen v. Lee, 11 Paige Ch. E. 107; 
 Walsh V. Powers, 43 N. Y. 23, 26. An infant who has deposited money with stock- 
 brokers as a margin upon the credit of which he has engaged in a losing speculation 
 in stocks without ever having possession of the stocks may avoid his contract, repudiate 
 his orders, and recover his deposit in full. Mordecai v. Pearl, 63 Hun, 553; Ruchizky 
 v. DeHaven, 97 Pa. St. 202. But see Criunmey v. Mills, 40 Hun, 370. 
 
Deposits. 21 
 
 that infants are liable for their tortious acts, such as trespass, assault, 
 and fraud, in the same manner as adults. If an infant purchase goods 
 under fraudulent misrepresentations, a recovery may be had against 
 him in an action of trover ;i or he may be indicted and punished for 
 obtaining goods on false pretenses.^ An action on the contract ■will 
 not be supported; * nor can his contract be turned into a tort for the 
 purpose of charging him.* The action, disaffirming the contract, must 
 be founded upon the infant's tortious act ; because the law does not 
 hold him liable on the contract, even where it is infected with fraud.^ 
 
 An infant may avoid his contract at any time before and within a 
 reasonable time after he comes of age." If he hire a horse to go a 
 journey, he engages to use ordinary care and diligence to protect the 
 animal from injury, and to return him at the time agreed upon. A 
 bare neglect to do either will not render him liable on his contract, nor 
 subject him to an action of trespass.' But if he does any willful and 
 positive act which amounts to a disaffirmance of the contract, the owner 
 is entitled to the immediate possession and may maintain an action of 
 trespass against him.* Though no action can be maintained against 
 the infant based on the contract, it is admitted that an action of trover 
 may be maintained against him for a conversion of the property.' The 
 act of conversion by sale, or by appropriating the property to his own 
 use, is a tortious act. A failure by him to pay over money, received 
 by him for a third person, where by the understanding he is not bound 
 to pay over the same money, is not a conversion. It is a breach of 
 contract." 
 
 1 Bullock Y. Babcock, 3 Wend. 391. In this case an infant of twelve years was 
 adjudged liable in an action of trespass, assault, and battery, viz. , for shooting the 
 plaintiff, his playfellow, with a bow and arrow. See Conklin v. Thompson, 29 Barb. 
 18; Scott V. Watson, 46 Me. 362. And in Wallace v. Morse, 5 Hill, 391, an action 
 of tort was maintained against the defendant for obtaining goods of the plaintiff 
 fraudulently, with an intention not to pay for them. See also Badger v. Phinney, 15 
 Mass. 359 ; Homer v. Thwing, 3 Pick. 492; and cases cited in Eckstein v. Frank, 
 1 Daly, 334. 
 
 2 The People v. Kendall, 25 Wend. 399. 
 8 Brown v. McCune, 5 Sand. 224. 
 
 * Eobbins.v. Motint, 4 Kobertson, 553, 560; Munger v. Hess, 28 Barb. 75. 
 
 6 Green v. Greenbank, 2 Marshall, 485; Price v. Hewitt, 8 Wels. Hurl. & Gor. 146; 
 <3ilson V. Spear, 38 Vt. 311; Hewitt v. Warren, 10 Hun, 560. 
 
 6 Chapin v. Shafer, 49 N. T. 407. 
 
 '' Eaton V. Hill, 50 N. H. 235; Moore v. Eastman, 1 Hun, 578. 
 
 8 Campbell v. Stakes, 2 Wend. 137. In this case it was held, that the infant dis- 
 affirmed the contract by willfully and intentionally injuring the hired horse. 
 
 ^ Yasse v. Smith, 6 Cranch, 226, 230; Baxter v. Bush, 29 Vt. 465. 
 
 10 Boot V. Stevenson, 24 Ind. 115. Walsh v. Powers, 43 N. T. 23; was decided oa 
 same principle. 
 
22 Law of Bailments. 
 
 As the infant may make, though he cannot bind himself by, a con- 
 tract, the law will probably imply an undertaking on his part safely to 
 keep and return goods bailed to him, from the circumstances attending 
 the delivery. If he repudiate this implied contract, he certainly cannot 
 afterwards claim to hold the goods under it or to shield himself from 
 liability by appealing to it. Hence he is liable for any positive and 
 tortious injury to the goods, for a conversion of them, or for any act of 
 fraud by which he deprives the owner of his property.^ A refusal to 
 surrender the goods, or a misappropriation of them is a wrongful act, 
 from the consequences of which the law will not protect him. The 
 invalidity of the contract does not afiEect the liability of a party for a 
 conversion of the property.^ 
 
 § 15. The presumption is always that the person entering into a con- 
 tract is of sound mind and capable of contracting. The disability 
 must be established by evidence ; it is treated as an exception to the 
 general rule, to be established by the party alleging the disability.^ 
 
 What is unsoundness of mind, such as will render a man incompetent 
 to bind himself by contract? It is not easy to give a precise answer; 
 but it is safe to say that the free consent of a rational mind is neces- 
 sary to create a contract ; a rule which is easily capable of being enforced 
 in respect to all executory contracts,* and in cases where no equity re- 
 quires a partial or complete enforcement of the agreement.^ In strict 
 law, the want of understanding prevents the meeting of minds which 
 is essential to the creation of a binding contract. In many cases the 
 
 1 The principles recognized in analogous cases fully support the text. Marshall v. 
 Wing, 50 Maine, 02. He is liable for a trespass though under seven years of age. 
 Hutching v. Engel, 17 Wis. 230; Baxter v. Bush, 29 Vt. 405. He is even liable on his 
 note, given in a settlement with the mother of his bastard child. Gavin v. Burton, 8 
 Ind. 69. 
 
 2 Hall V. Corcoran, 107 Mass. 251. In this case the hirer of a horse to be driven for 
 pleasure on the Lord's day, was held liable for a conversion of the property notwith- 
 standing the contract was illegal. The horse was let to go to a particular place, and 
 the act of conversion consisted in injuring the horse by driving it to another place. 
 
 A person who has become the bailee of goods through a contract entered into with 
 the agent of an undisclosed principal cannot rescind the contract on account of the 
 minority of the bailor, without delivering the goods to him, even if the contract is 
 voidable. Stiff v. Keith, 143 Mass. 224. 
 
 8 Jackson V. King, 4 Cowen, 207; Fay v. Burditt, 81 Ind. 433; McCarty v. Kearnan, 
 86 111. 291. 
 
 * Eice V. Peet, 12 John. 503. This was the case of a note held and delivered by an 
 incompetent party under a contract. 
 
 5 Ingraham v. Baldwin, 12 Barb. 9; S. C. 9 N. T. 45. In this case the defense of 
 lunacy was offered after a mortgage had been foreclosed and the premises sold; and 
 the court held that no one could interpose the defence unless he claimed under the 
 mortgagor. 
 
Deposits. 23 
 
 situation of a lunatic or deranged person is like that of an infant; 
 though incapable of binding himself, he will not be suffered to retain 
 the consideration of an executed contract and at the same time set it 
 aside. This is especially reasonable where the party dealing with him 
 acts fairly and in good faith, and without any knowledge of his 
 infirmity.^ 
 
 Mere imbecility or weakness of mind, short of idiocy or derangement, 
 or loss of mind, does not take away a man's capacity to contract.^ 
 The rule is one of necessity ; it is founded on the extreme difficulty of 
 prescribing any other rule defining the strength of mind requisite for 
 the transaction of business. To say that a man of very weak mind 
 cannot bind himself by contract, would raise endless issues of fact and 
 practically take away from such persons the means of self-support.' 
 
 Certain rules of evidence favor the impression that the law requires 
 a higher degree of capacity to bind one's self by contract than it does 
 to make a valid disposition of property by wUl. For example, all 
 transfers of property and all contracts made by a lunatic or by a con- 
 firmed inebriate after the finding of an inquisition declaring his incom- 
 petency are void : * but the inquisition is not conclusive evidence of his 
 incapacity to make a will.* The courts give effect to the inquisition 
 
 ■f 
 
 with a view to accomplish the intent (Tf the statute ; so that the rule of 
 
 1 Loomis V. Spencer, 2 Paige's Ch. 153; Molton v. Camroux, 4 Exch. 17; S. C. 2 
 Exch. 487; Baxter v. Earl of Portsmouth, 5 B. & C. 170; 7 Dow. & By. 614. A con- 
 tract with a person not known to be of unsound mind, and who has not been found upon 
 a commission de lunatico inquirendo to be insane, may he sustained if it shall have 
 been proven to have been fairly made and without advantage being taken of the 
 lunatic. But neither money advanced, nor compensation for services rendered, to a 
 lunatic can be recovered from him, if the circumstances were such as to put the party 
 upon inquiry as to his mental condition. Matter of Beckwith, 3 Hun, 443; Lincoln 
 V. Buckmaster, 32 Vt. 52; Mutual Life Ins. Co. v. Hunt, 14 Hun, 169; 79 iST. T. 541: 
 Matthiessen & W. E. Co. v. McMahon, 38 N. J. L. 537; Lancaster County Bank v. 
 Moore, 78 Pa. St. 407; Behrens v. McKenzie, 23 Iowa, 333; Wilder v. Weakley, 34 
 Ind. 181. 
 
 2 Odell V. Buck, 21 Wend. 142; Jackson v. King, 4 Cowen, 207. Second childhood; 
 Matter of Barker, 2 John. Ch. 232. Monomania connected with the disposition or 
 management of property ; Matter of Kussell, 1 Barb. Ch. 38. Imbecility from epilepsy ; 
 Ridgway v. Darwm, 8 Ves. 65. 
 
 3 Sprague v. Duel, Clarke, 90; S. C. 11 Paige Ch. 480. 
 
 * L'Amoureux v. Crosby, 2 Paige's Ch. K. 422; Wadsworth v. Sharpsteen, 8 N. Y. 
 388; Leonard V. Leonard, 14 Pick. 280; Carter v. Beckwith, 128 N. Y. 312; Hughes 
 V. Jones, 116 N . T. 67. Contracts made before oflSce found, but within a period 
 overreached by the finding of the jury, are not utterly void, but are presumed to be so 
 until capacity to contract is shown by satisfactory evidence. Hughes v. Jones, 116 
 N. T. 67; Van Deusen v. Sweet, 51 N. Y. 378; Banker v. Banker, 63 N". Y. 409. 
 
 5 Leonard v. Leonard, 14 Pick. 284; Breed v. Pratt, 18 Pick. 116. 
 
24 Law of Bailments. 
 
 evidence annulling such subsequent contracts springs from the spirit 
 of the statute. The presumption of a want of capacity to make a will, 
 arising from the fact that a man is under the guardianship of the court, 
 remains ; and it is perhaps overcome where the court modifies the com- 
 mission for the purpose of enabling him to execute a will.^ 
 
 In truth, the rule of law does not vary with reference to the subject 
 matter of the transaction. A person of unsound mind can neither bind 
 himself by contract, nor make a wUl. Our law does not distinguish 
 between different degrees of intelligence or mental capacity. By the 
 statute a man of sound mind and memory may dispose of his property 
 by will ; ^ he has a sound mind when he is able to comprehend the sit- 
 uation of his property, his natural relations, and the nature of his act ; 
 he has a sound memory when he is able to collect in his mind, without 
 prompting, the elements of the business to be transacted, and form 
 some rational judgment in relation to them.'' 
 
 § 16. A man who is so intoxicated that he is deprived of the use of 
 his reason and understanding, cannot bind himself by contract ; he has 
 no legal capacity.^ Partial intoxication, where there is no fraud or undue 
 influence practiced, does not render him incompetent ; he may make a 
 contract or a will unless he be s^ar under the influence of intoxicating 
 liquor as to disorder his faculties and pervert his judgment.^ Where 
 a person takes advantage of an intoxicated man and obtains a contract 
 from him by artful and fraudulent dealing, a court of equity wUl grant 
 relief; and a defense may be interposed m an action at law, grounded 
 on the fraud.* By retaining the benefits arising from the contract, as 
 where a drunken man purchases goods and keeps them after he becomes 
 sober, he renders himself liable on the contract. 
 
 § 17. When goods come into the possession of one who has no capac- 
 ity to contract, it has been argued that the law will raise or imply 
 a duty or contract from the circumstances.' Without attempting to 
 
 1 In the Matter of Burr, 2 Barb. Ch. R. 208; in the Matter of Patterson, 4 How. Pr. 
 34; Lewis v. Jones, 50 Barb. 653. 
 
 2 Blanchard v. Nestle, 3 Denio, 37; Stewart's Exr. v. Lispenard, 26 Wend. 255. 
 
 s Delafield v. Parish, 25 N. T. 9, 66, 97; Van Guysling v. Van Kuren, 3.5 N". T. 70; 
 Clapp V. Fullerton, 34 N. T. 190; Tyler v. Gardner, 35 N. Y. 559; Bannister v. 
 Jackson, 46 N. J. Eq. 59.3; Clifton v. Clifton, 47 N. J. Eq. 227. What is derangement? 
 SeeHaviland v. Hayes, 37 N. Y. 25; and Seaman's Friend Society v. Hopper, 33 
 K. Y. 610. 
 
 ^ Gore V. Gibson, 13 Mees. & Wels. 623; Prentice v. Achone, 2 Paige, 30. 
 
 s Peck V. Gary, 27 N. Y. 9, 20; Burns v. O'Eourke, 5 Robt. 649. 
 
 " Hutchinson v. Brown, Clarke's Ch. E. 408, 420; Dane v. Kirkwell, 8 C. & P. 679. 
 The contract of a drunken man is voidable; it is not void. Mathews v. Baxter, L. K. 
 8 Ex. 133; Carpenter v. Eodgers, 61 Mich. 384. 
 
 'Per Pollock, C. B. 13 Mees. & Wels. 625. 
 
Deposits. 25 
 
 resolve this point, we may reasonably assume that the law will deal 
 with him as it does in the case of an executed contract ; it will not 
 suffer him to interpose his disability as a cloak for misconduct. If he 
 repudiates the implied contract ordinarily raised by law, the owner may 
 at once recover his goods ; the right of possession follows the title, and 
 where the custody of the property has been parted with through mis- 
 apprehension, it may be retaken. 
 
 A lunatic, though incapable of committing the moral wrong of tres- 
 pass, is nevertheless answerable in his estate for the injury he com- 
 mits.^ Under the statute which gives damages recoverable in the name 
 of the executor or administrator of the deceased, for the destruction of 
 life through carelessness or by any wrongful act, a lunatic has been 
 held responsible. The decision was made at a General Term of the 
 Supreme Court at Albany, and is supported by many other cases ad- 
 judged upon the same principle. The law in such cases demands 
 of the lunatic? only the actual damages, to be satisfied out of his 
 estate.^ 
 
 On the same principle, an insane man is liable for his wrongful and 
 tortious acts of injury to the property of other persons. He is liable 
 like an infant.' 
 
 § 18. The Finder. The finder of personal property is not compelled / 
 by law to take the same into his custody ; but if he voluntarily assume 
 the charge of it, the law imposes upon him the duties of a depositary.^ 
 The action of trover, so long in use, was designed expressly for the re- 
 covery of property by the owner from the custody of the person, intft 
 whose hands it may have lawfully come, as by finding, the important 
 fact in the case being the act of conversion ; that is, the exercise of 
 some act of ownership or control over the property in exclusion of the 
 legal owner. In that form of suit, in general, only the two questions 
 of title and conversion are litigated. A careful examination, however, 
 of the decisions in the action of trover will show that the_flnderjsj_and \ 
 upon principle ought to be, held responsible for the care of the goods so I 
 received . The law, in fact, gives him a special property in them, and 
 he may maintain a suit against any one who shall convert them except 
 
 1 Morse v. Crawford, lY Vt. 499; held liable in trover for strangling an ox bailed to 
 him. 
 
 ^ Mull V. Kelly, also Krone v. Schoonmaker, 3 Barb. 647. See Session Laws of 
 1847, ch. 450; also Laws of 1849, ch. 256. 
 
 'Weaver v. Ward, Hob. 134; Cross v. Andrews, Cro. Eliz. 622. See Bush v. 
 Pettibone, 4 N". T. 300. Morain v. Devlin, 132 Mass. 87; Cross v. Kent, 32 Md. 581; 
 Ward V. Conastar, 4 Baxt. 64; Mclntyre v. Sholty, 121 111. 660. 
 
 * Story on Bailm. § 86, 87; Cory v. Little, 6 ST. Hamp. 213. 
 
26 Law of Bailments. 
 
 the rightful owner ; ' having the right and the means ot protecting the 
 property, it is but reasonable that he should be required faithfully to 
 exercise and use them. / Where a right is conferred, it is a general 
 principle of both law and equity, that the person or party in whom it 
 is vested shall be required to exercise it in good faith, so as to carry 
 out the purpose for which it is given. " 
 
 The action of trover, which always assumes that the property in 
 question came lawfully into the defendant's possession, was frequently 
 brought and sustained for the injury suffered by the misuse, or dis- 
 position of it contrary to orders. Every direct act of authority, amount- 
 ing to an assertion of title, every breach of the express or implied trust 
 on which it was received, and every abuse of the lawful possession, has 
 been repeatedly held a conversion of the property.^ These familiar 
 principles are applicable both to chattels and to choses in action.^ 
 
 § 19. The finder is in lawful possession against all the world except 
 the owner ; he has what the law treats as a special property in the 
 chattel, a title or interest suflQcient to enable him to maintain the action 
 of trover against any stranger or third person who takes or detains it 
 from him.^ The rule does not apply to the finder of a chose in action ; " 
 a mere servant of the owner has no such interest or special property in 
 the goods entrusted to him.' He is not clothed with the rights of a 
 bailee or fuider of chattels. 
 
 § 20. Xot being legally bound to assume the custody of lost goods 
 or chattels, the question often arises whether the finder is entitled to 
 compensation for his services and expenses when he does take them 
 into his keeping. The rule as usually stated is, that one who takes up 
 an estray or any other lost chattel cannot levy a tax upon it by way of 
 reward or indemnity.' He certainly does not acquire any lien upon it 
 for his services or expenses in taking care of the property. In most 
 
 1 McLaughlin v. Waite, 9 Cowen, 670; Hamakerv. Blancliard, 00 Pa. St. 377; Tancil 
 V. Seaton, 28 Gratt. 001; Lawrence>. Buck, 02 :sie. 275; Durfee v. Jones, 11 R. I. 588. 
 
 2 The Mayor, &c., of Xew York v. Furze, 3 Hill, 612. 
 
 3 Baldwin v. Cole, 6 Mod. 212; McCombie v. Davies, 6 East, 540'; Roe v. Campbell, 
 40 Hun, 4! I; McPheters v. Page, 82 Me. 2:34. 
 
 * Murray v. Burling, 10 John. R. 172; 2 Esp. N". P. 190; Edwards on Bills and Xotc^s, 
 2nd ed., 679 a. 
 
 6 Amory v. Delamirie, 1 Strange, 505. The plaintiff, who was a chimney sweeper's 
 boy, found a jewel, and having left it with the defendant, who refused to return it, 
 an action of trover was sustained in favor of the finder. 
 
 8 McLaughlin v. Waite, 9 Cowen, 670. 
 
 ' Tuthill V. Wheeler, 6 Barb. 362, 364. Where a man bargains for property and 
 the title is to vest in him when he pays for it, he cannot bring trover for it against an 
 officer who levies on it as the seller's property until he has paid for it. 
 
 8 1 Roll. Abr. 870, C. 5; SToy's Rep. 144; Salk. 686; Watts v. Ward, 1 Oregon, 86. 
 
Deposits. 27 
 
 cases it must be admitted that he performs a meritorious act ; but it 
 is a voluntary act of charity or good will; and it is the policy of the 
 law to leave good offices and meritorious acts of benevolence dependent 
 for reward upon the moral duty of gratitude. Hence the law gives no 
 recovery for voluntary services in preserving a neighbor's property 
 from loss by fire or flood.^ But suppose a chattel is taken up and pre- 
 served by the finder at some expense of both time and money, and that 
 the owner afterwards comes and receives it, thereby accepting the 
 benefit of the expenses thus incurred ; does the law hold the owner 
 liable for these reasonable expenses? If he choose to abandon his 
 property, it is clear that he is not liable ; because the expense was not 
 iucurred at his request. But if he accepts the property, preserved and 
 restored to him by these reasonable expenses, he is bound, we think, to 
 reimburse the finder.^ It is remarkable that a question of so much 
 practical importance should have remained so unsettled. 
 
 A reward being offered to the finder of lost goods or chattels, any one 
 may act upon it and may claim the compensation as a matter of con- 
 tract ; and where by its terms, or by a fair interpretation of the offer, 
 the reward is to be paid on restoring the property, the finder may de- 
 tain it until the reward is paid.' 
 
 Under a statute of this State a person finding horses, cattle or sheep 
 upon his enclosed lands may acquire a lien upon them for his reason- 
 able charges for keeping them, in the manner pointed out in the act. 
 But he cannot do so unless he follows the provisions of the statute.* 
 
 1 Nicholson V. Chapman, 2 H. Black. 254; Bartholomew v. Jackson, 20 .John. E., 
 28; Watts v. Ward, 1 Oregon, 86; Binstead v. Buck, 2 W. Blackstone, 1117. 
 
 2 Reeder v. Anderson, 4 Dana, 193; Etter v. Edwards, 4 Watts, 63; Amory v. Flyn, 
 10 John. R. 102; Preston v. Neale, 12 Gray, 222, 223; Chase v. Corcoran, 106 Mass. 
 286. Sheldon v. Sherman, 42 Barb. 368; S. C. 42 N. T. 484. This case justifies the 
 inference that where the owner comes and takes his property benefited by the services 
 of the finder, the law will imply a promise to pay for such services. When is a thing 
 to be considered as lost? Money or chattels, voluntarily laid down and forgotten, are 
 not considered lost in a legal sense, and so it is held that the proprietor of the store, 
 or bank, or place where they are left, is the proper custodian, rather than the party 
 who first discovers them. State v. McCann, 19 Mo. 249; Lawrence v. The State, 
 1 Humph. 228; McAvoy v. Medina, 11 Allen, 549; Kincaid v. Eaton, 98 Mass. 139; 
 Livermore v. White, 74 Me. 452. The rule does not hold where a conductor finds 
 money in a railroad car, and the owner cannot be found. Tatum v. Sharpless, 6 Phila. 
 18; N". T. and Harlem R. Co. v. Haws, 56 N". T. 175. Or where the bailee of an old 
 safe finds within its lining a roll of bank bills, and the owner cannot be found. Dur- 
 fee V. Jones, 11 E. I. 588; Bridges v. Hawkes worth, 7 Eng. Law & Eq. 424. 
 
 8 Wentworth v. Day, 3 Mete. 352; Neville v. Kelly, 12 C. B. N. S. 740; Baker v. 
 Hoag, 7 Barb. 113; S. C. 7 N. Y. 555. 
 ^ Laws of 1890, Chap. 569, § 120. 
 
28 Law of Bailments. 
 
 § 21. The finder of a lost article, who takes it into his custody in 
 good faith, not knowing who the owner is, is not rendered guilty of lar- 
 ceny by afterwards secreting and appropriating it to his own use. The 
 taking must be felonious in order to make the act a felony ; the taking 
 must be a trespass ; ^ and it must be with an intent to steal, animo 
 furandi.^ The discrimination between the act of taking up a lost 
 pocket-book containing money with an intent to appropriate it, and the 
 act of taking it up and presently concealing it with the same intent, is 
 clearly made ; the distinction is indeed nicely drawn, to a rather thin 
 edge ; and yet it must be admitted that the crime of larceny is plainly 
 distinguishable from the fraudulent concealment and conversion of 
 property that comes lawfully into a man's possession. The finder of a 
 pocket-book containing bank bills and having the owner's name legibly 
 written in it is a thief, if he conceals and appropriates the money.' It 
 is not necessary that he should have lifted it from the ground with a 
 thievish intent.* On the other hand, he is held not guilty of felony, 
 where he takes up the book with the money in it, without finding any 
 mark or name in it to indicate the owner, and afterwards fraudulently 
 conceals the same with a view to convert it to his own use.^ It is his 
 duty to take means to find the owner and restore the property ; but 
 the law does not punish him as a thief for his failure to fulfill this 
 obligation. 
 
 § 22. Under the old common law, where a ship was lost at sea and 
 the goods or cargo were thrown upon the land, the property was ad- 
 judged to the king. The law was afterwards modified under a growing 
 sense of justice, and it was made the duty of the sheriff to seize and 
 keep the property for a year and a day, to await the appearance of the 
 owner. But the goods were not deemed a legal wreck unless they 
 
 1 The People v. Anderson, 14 John. 294. The indictment was for the larceny of a 
 trunk, lost from a stage coach. 
 
 2 The People v. McGarren, 17 Wend. 459; The State v. Weston, 9 Conn. R. 527; 
 Wilson V. The People, 39 N". T. 4.59. 
 
 " The State v. Weston, supra; People v. Swan, 1 Park. Cr. R. 9. 
 
 The Penal Code provides that a person who finds lost property under circumstances 
 which give him knowledge or means of inquiry as to the true owner, and who appro- 
 priates such property to his own use or to the use of another person who is not en- 
 titled thereto, without having first made every reasonahle effort to find the owner and 
 restore the property to him, is guilty of larceny. Penal Code, § 539. 
 
 * The People v. Call, 1 Denio, 120. In this case the defendant was convicted of the 
 larceny of a promissory note; the note was handed to him to write an indorsement 
 upon it, and he carried it away feloniously. Stealing a receipt is not larceny. The 
 People v. Loomis, 4 Denio, 380. See Florence Sewing Machine Co. v. Warford, 1 
 Sweeney, 433, 448. 
 
 6 The People V. Cogdell, 1 Hill, 94; State v. McCann, 19 Mo. 249. 
 
Deposits. 29 
 
 came to land.* Under a statute of this State, ships and goods cast upon 
 the land from the sea are taken care of and secured on hehalf of the 
 owner, in the name of the people. Unless the property be of a perish- 
 able nature, it is made the duty of the sheriff to keep the same for a 
 year ; and if no one appear to claim it within that time, it then becomes 
 his duty to sell the property and pay over the proceeds into the treas- 
 ury of the State, for the benefit of the parties interested. In the case 
 of perishable property, the county judge may at once order it sold and 
 the proceeds retained for the owner.^ Under this statute the officer 
 is entitled to a reasonable allowance for his services as salvage, and may 
 detain the property until the same, together with his expenses, are 
 paid. The statute applies only where the property is thrown upon the 
 shore; and though the officer's services are compensated under the 
 name of salvage, they are utterly dififerent and distinct from the serv- 
 ices rendered in the saving of a vessel or goods from loss while at sea 
 either by shipwreck, fire or other distress. 
 
 § 23. Salvage is a term of the maritime law ; it is the reasonable 
 compensation which that law gives to the salvor, to one who renders 
 effectual services upon the high seas or on the sea-coast, or anywhere 
 within admiralty and maritime jurisdiction, in saving a ship or cargo 
 from impending perils or in recovering them from actual loss; whether 
 such services be rendered in recapturing the vessel, or in recovering it 
 when found derelict at sea, or in raising it, or in taking charge of it 
 with the assent of the master while in distress. The raising of a boat 
 and the saving of its cargo from the river, where the tide ebbs and !tiows, 
 gives a title to salvage.' It is a pecularity of this right to salvage, 
 that it accrues only where the property is ia fact saved ; and the amount 
 to be allowed is estimated with reference to the extent of the services 
 and the danger incurred, the value of the property saved and the perils 
 from which it has been rescued.* When it accrues, it attaches as a 
 hen upon the property.^ 
 
 It is a general rule founded on motives of public policy that no one 
 on board the vessel can become a salvor or entitled to compensation in 
 the nature of salvage ; because it is the duty of all on board to stand 
 by the ship and assist it through all perils. A partial exception to the 
 rule is allowed in favor of the seamen ; when they render valuable serv- 
 ices in saving portions of the vessel and cargo they are entitled to 
 
 1 1 Black. Com. 290-294. 
 
 2 Laws of 1890, Chap. 569, §§ 137-150. 
 
 8 Baker v. Hoag, 7 N. Y. 3 Seld. 535; 3 Kent's Com. 245. 
 
 * Clarke v. The Brig Dodge Healy, 4 Wash. C. C. 651 ; 3 Kent's Com. 245. 
 
 s Hartford v. Jones, 1 Ld. Eaym. 393; Hand v. The Elvira, Gilpin, 60. 
 
30 Law of Bailments. 
 
 wages, though not due by the terms of their contract, from the proceeds 
 of the property saved. ^ 
 
 § 24. The Consideration. In every contract there must be a valid 
 consideration on wliich the express or implied undertaking rests, as 
 upon a necessary support ; a naked promise being in itself simply void, 
 nudum pactum. The general rule is that to make a contract or agree- 
 ment obligatory, the consideration must be either a benefit to the party 
 promising, or some trouble or prejudice to the party to whom the prom- 
 ise is made; otherwise there is no agreement that can be enforced. 
 Thus, for example, mutual promises support each other, the receipt of 
 money for the use of another raises and supports the promise to pay it 
 over, and services performed render good the promise of payment there- 
 for.^ The act of entrusting a thing with another, and his undertaking 
 the care of it, the law considers a sufficient consideration for his faith- 
 ful discharge of the trust. The custody of the property is parted with 
 on the faith of the owner in the integrity and care of the person to 
 whom it is delivered ; and though he engages to keep it gratuitously 
 he is responsible for a faithful execution of the trust reposed in him, on 
 the ground that his failure to keep the promise made, or the undertak- 
 ing implied by law, works an injury or prejudice to the party with 
 whom the agreement is made. The maxim e.i- mtdo jyacto nan oritur 
 actio, borrowed from the civil law, does not apply in this case ; for there 
 is an act, promise or undertaking, by each of the parties to the contract, 
 sufficient to render it valid and binding. 
 
 § 2.5. /Sheriff's and Receiptors. A sheriff levying upon goods must 
 use due diligence to keep them safely to satisfy the execution. But he 
 is not an insurer, and is not, like a common carrier, answerable for a 
 loss of the goods by fire, or by accidents of a similar kmd. His capac- 
 ity as an officer is not considered as fixing a more rigorous measure of 
 liability upon him than if he were a private person. He is answerable 
 as a bailee for hire; and is bound for the use of ordinary care and skill 
 in preserving the goods which he seizes rmder an attachment or levies 
 upon under an execution. The rule is the same whether he takes the 
 goods into his own custody or delivers them into the hands of an agent 
 
 1 Daniels v. The Atlantic M. Ins. Co., 24 N. T. 447. Salvage is allowed and divided 
 among the owners, officers and crew of the saving ship. Hawkins v. Avery, 32 Barb. 
 5.51, 556. 
 
 » 1 Comyn on Con. 12, 15, 16; Chitty on Contracts, 26, 27; 7 Conn. R. 57; 9 Cowen 
 R. 778; 4 John. R. 235; 2 Black. Comm. 444, 445; Miller v. Drake, 1 Caines, 45; 
 Powell V. Brown, 3 John. R. 100; Foster v. Fuller, 6 Mass. R. 58; Randle v. Harris, 
 6 Terger E. 508; Missisquoi Bank v. Sabin, 48 Vt. 239; Buckingham v. Ludlum, 40 
 N. J. Eq. 422; Jones v. Binford, 74 Me. 439. 
 
Deposits. 31 
 
 or servant.^ And it applies equally to other officers who receive a com- 
 pensation for their services.^ 
 
 § 26. Is the sheriff liable for the goods when they are stolen ? It is 
 quite clear that he is not where he holds them under mesne process, as 
 under an attachment to await the judgment of the court, and it appears 
 that he has taken such reasonable care of the property as a prudent 
 man usually takes of his own.^ He is bomid to show that he has taken 
 due care of the property * — such care as the nature of the goods and 
 the circumstances reasonably call for.^ Is the sheriff liable for any 
 greater degree of care where he levies upon goods under an execution ? 
 It has been so held, upon the theory that he ought to act with greater 
 vigilance in the execution of final process.' There does not appear to 
 be any good reason for the distinction ; the general title does not pass 
 by a levy under an execution, any more than it does by a seizure under 
 an attachment ;'' in both cases the officer acts under the command of the 
 court, and becomes liable for the safe-keeping of the property ; in one 
 case he keeps it to await the judgment and execution, and in the other 
 *o await the sale. The only discoverable difference between the two 
 situations is found in the probable length of time during which he may 
 have to hold the goods in custody — a circumstance hardly sufficient to 
 lay the foundation for a different rule of liability. 
 
 § 27. There are some dangers, against which the sheriff is bound to 
 guard the goods in a special manner. He is bound to guard them 
 against waste or removal by the defendant. He is armed with peculiar 
 powers, and his duties are clearly defined.' He makes a levy upon 
 
 1 Browning v. Hanford, 5 Hill, 588; S. C. Y Hill, 120; S. C. 5 Denio, 586; Moore v. 
 Westervelt, 21 N. Y. 103; S. C. 27 N. Y. 234; Wood v. Bodine, 82 Hun, 354, 356. 
 The sheriff need not at once remove heavy and cumbersome articles, say 50 tons of pig 
 Iron; Scovill v. Root, 10 Allen, Mass. 414; or a load of coal in a barge; Moore v. 
 Westervelt, 21 N". Y. 103. 
 
 2 The rule was applied to a country treasurer In Supervisors of Albany Co. v. Dorr, 
 25 Wend. ^0; in the case of a receiver, in Knight v. Plymouth, 3 Atk. 480 ; and it 
 has been applied in the case of revenue officers and postmasters ; Burke v. Trevitt, 
 1 Mason, 96, 101. 
 
 3 Dorman v. Kane, 5 Allen, Mass. 38; Harper v. Moffit, 11 Iowa, 527. 
 
 * Mill V. Gilbreth, 47 Maine, 320. 
 
 ^ Briggs V. Taylor, 35 Vt. 57, 67. Attaching grain in the straw, he is bound to 
 thrash it when that is necessary to preserve it. He is not liable for the natural dete- 
 rioration of the property — such as spirituous liquors. Robinson v. Barrows, 48 Maine, 
 186. 
 
 * Hartleib v. McLane's Admrs., 44 Penn. St. K. 510. 
 
 ' Green v. Burke, 23 Wend. 490, 496-502; Peck v. Tiffany, 2 If. Y. 451, 456. The 
 levy does not satisfy the execution. See Smith v. Orser, 42 N. Y. 132. 
 
 * § 1702 of the Code of Civil Procedure provides how property shall be kept that has 
 been replevied. 
 
32 Law of Bailments. 
 
 them in the manner pointed out by the law ; ^ he takes them into his 
 own custody ; or failing to do so, he is liable for them to the same extent 
 as if he had taken them into his own keeping.^ He is also bound to 
 keep the property with a care and skill proportioned to its nature and 
 circumstances. In other words, the rule must be interpreted with 
 reference to the nature and situation of the property and the speciflc 
 duties imposed upon the oflELcer by law. On this account we find in a 
 leading case the same charge to the jury interpreted by different judges 
 who adopt it, as laying down a different rule of liability ; ^ at the same 
 time both agree that the sheriff is not bound to any greater vigilance 
 than a prudent man exercises over his own property.^ 
 
 § 28. After the sheriff has seized the goods under an attachment or 
 made a levy upon them, it is not unusual for him to leave them in the 
 custody of the defendant or deliver them to a third person and take his 
 receipt therefor with a promise to redeliver them when called for. The 
 officer does this upon his own responsibility ; the law permits but does 
 not expressly authorize the act ; it enforces the receiptor's contract, but 
 refuses to accept or substitute it in the place of the sheriff's UabUity.- 
 The party so receiving and promising to deliver the property to the 
 sheriff, without compensation, is a mere depositary; prima facie he is 
 only liable to the same extent as a bailee without hire. ^ He is liable, 
 however, according to the terms of his contract " — to the full extent of 
 his engagement, even where he covenants to return the property or pay 
 the amount due on the execution.' 
 
 The receiptor, as we said, is bound by the terms of his contract. If 
 he promise to deliver the goods to the sheriff when called for, no suit 
 can be maintained against him until after a demand and refusal to de- 
 
 1 Glover v. Whittenhall, 6 Hill, 597. 
 
 2 See opinions in Browning v. Hanford, 5 Denio, 586; although the point in issue 
 was one of evidence merely. See Jenner v. Joliffe, 6 .John. 9. 
 
 8 Moore v. Westei-velt, 27 N. Y. 234. The sheriff had attached a cargo of coal on 
 hoard a schooner. The schooner having sunk in a storm at the wharf, the sheriff was 
 sued for the loss ; and the judge at circuit charged the juiy that, "it was the duty of 
 the sheriff to take such steps for the safety of the coal as a careful, prudent man of 
 good sense and judgment, well acquainted with the condition of the vessel and her 
 location with regard to exposure to storms, and having all the power of the sheriff in 
 the matter, might reasonably have been expected to take, had the coal belonged to 
 himself." Mr. Justice Balcom understood this as laying down the rule of ordinary 
 diligence ; Mr. Justice Davies interpreted it as laying down a more strict rule; and 
 both agreed in holding it sufficiently favorable to the plaintiff. 
 
 * See further, Kendall v. Morse, 43 N". H. 55.3; White v. Madison, 20 J^". Y. 117, 126. 
 
 5 Brown v. Cook, 9 John. 361 ; Edson v. Weston, 7 Cowen, 278. 
 
 « Cornell v. Dakin, 38 N". Y. 253. 
 
 ' Acker v. Burrell, 21 Wend. 605, 607; S. C. 23 Id. 606. 
 
Deposits. 33 
 
 liver ; until a demand is made no action can arise, for that is parcel of 
 the contract.^ 
 
 § 29. The receiptor is also bound by the statement of fact contained 
 in the receipt given by him. If that state the value or the ownership of 
 the property, in word or by implication, he will be estopped from deny- 
 ing it.^ And because he is thus estopped, the sheriff is also when called 
 upon for the proceeds of the property.* This doctrine of estoppel is 
 founded on a principle of ethics. The rule of law and the reason of it 
 are stated thus : Where a man by his words or conduct causes another 
 to assume or believe the existence of a certain state of facts, and induces 
 him to act on that belief, so as to alter his previous position, the former 
 is concluded from averring against the latter a different state of thiags 
 as existing at the same time.^ Hence the receiptor who accepts the 
 goods from the sheriff as the property of the defendant in the execution, 
 promising to redeliver them, cannot afterwards set up title in himself. 
 His contract as receiptor precludes him from making that defense. By 
 omitting to assert his right of property at the time the levy is made, he 
 throws the sheriff off his guard and perhaps prevents him from levying 
 upon other property to satisfy the execution. He certainly induces that 
 officer to change his previous position.^ 
 
 1 Brown v. Cook, 9 Jolin. K. 361. 
 
 ^Dezell V. Odell, 3 Hill, 215; Penobscot Boom Co. v. Wilklns, 27 Maine, 345; Clark 
 T. Gaylord, 24 Ct. 484; Cornell v. Dakin, 38 N. Y. 253. 
 
 s The People v. Keeder, 25 N. T. 302. 
 
 < Pickard v. Sears, 6 Adolph. & Ellis, 469; Thompson v. Blanchard, 4 N. T. 303, 
 309. It is not necessary to an equitable estoppel that the party should have designed 
 to mislead. Manuf. & Traders' Bank v. Hazard, 30 N. T. 226, 230; Sammis v. Mc- 
 Laughlin, 35 N. Y. 647, 651; Gilbert v. Groff, 28 Hun, 50; Blair v. Wait, 69 X. Y. 113; 
 Trustees, etc, v. Smith, 118 N. Y. 634; Continental Nat. Bank v. Nat. Bank of Com- 
 monwealth, 50 N. Y. 575; Beebe v. Wilkinson, 30 Minn. 548; Pitcher v. Dove, 99 Ind. 
 175. 
 
 6 Dezell V. Odell, 3 Hill, 216; Bursley v. Hamilton, 15 Pick. 40. But see Clark v. 
 Weaver, 17 Hun, 481. It has been held that a person can defend against his receipt 
 for his own property attached on a writ against a corporation having no corporate ex- 
 istence. Halbert v. Soule, 57 Vt. 358. He is only liable to the officer so long as the 
 officer is liable to the attaching creditor or the debtor. Eoberts v. Carpenter, 53 Vt. 
 678. He is not absolutely liable to redeliver attached property. He is a mere bailee 
 of the attaching officer, who can enforce the promise of his bailee to deliver the goods 
 only so far as is necessary to relieve himself from liability to any party interested in 
 the attachment. Wright v. Dawson, 147 Mass. 384. But the receiptor cannot defend 
 upon the ground that the judgment in the action in which the property was 
 attached was fraudulently obtained; Holcomb v. C. N. Nelson Lumber Co., 39 
 Minn. 342; Bangs v. Beacham, 68 Me. 425 ; nor upon the ground that the officer at- 
 tached property of greater value than directed by the writ; Hunter v. Peaks, 74 Me. 
 363; nor because of irregularities in the commencement of the action in no way prej- 
 udicing the receiptor; Stevens v. Bailey, 5S N. H. 564. 
 
 o 
 
34 Law of Bailivlbnts. 
 
 § 30. Neither is the receiptor at liberty to set up title in a third 
 person. By acceptuig the proJDerty and promising to redeliver it, he 
 makes himself the sheriff's bailee, and in that capacity he is not allowed 
 to dispute the bailor's title. This is the general rule ; and the excep- 
 tions to it show how strictly it is enforced. If the property be taken 
 from him by a paramount title, he is discharged.^ But if he set up title 
 in another person as an excuse for not surrendering the property, he 
 makes himself a party to the controversy and must stand or fall by the 
 title which he asserts.^ To escape the burden of the suit, where the 
 property is taken from him by due legal process, he must give the 
 sheriff immediate notice of the proceedings. If he discharges his duty 
 in this respect, there is no reason for holding him bound to defend the 
 title.^ 
 
 § 31. Whatever may be the rule of liability applicable to the sheriff, 
 the receiptor i-eceivuig no compensation for the keeping or storage of 
 the goods, is liable for them as a depositary or bailee without hire. It 
 is clear that his liability cannot extend beyond that of the officer ; and 
 it is equally clear that upon principle his responsibility cannot beheld 
 exactly commensurate with the sheriff's liability over to the plaintiff in 
 the execution.* He is however bound to take reasonable care of the 
 property under the circumstances. If he give the sheriff his receipt for 
 a store of goods levied on by him, and allows the defendant in the execu- 
 tion to go on and sell them out at retail, he is answerable for the goods. 
 Leaving them under such circumstances to be wasted or sold, is gross 
 negligence.^ Even where the goods are sold by weight and have a 
 fixed market value, anthracite coal for example, the receiptor is bound 
 to keep and return the very article which he receives ; he is not allowed 
 to sell or consume it and then replace it with the same amount and kind 
 of coal.'' 
 
 § 32. A reasonable use of the property may be in some cases con- 
 sistent with the receiptor's responsibility. For instance, if he receives 
 a steamboat from an officer, seized under an attachment, he discharges 
 
 1 Edson V. Weston, 7 Coweu, 278. AndseeHealy v. Hutchinson, 20 Atlantic Eep'r. 
 (N. H.) 3.'i2. That a receiptor, whose contract is one of bailment and not of in- 
 demnity, may relieve himself from liability by proof of title in a third person, see 
 Mason v. Aldrich, .36 Minn. 28.3. 
 
 2 Eogers v. Weir, .34 N. T. 403, 467; Brown v. Thayer, 12 Gray, 1. 
 
 3 Bliven v. Hudson River r>. Co., 35 Barb. 188; S. C. 30 N. T. 403. This case did 
 not arise between the sheriff and his receiptor; but it arose between bailor and bailee, 
 and it affirms the principle stated in the text. 
 
 4 Harvey v. Lane, 12 Wend. 563, 565; Edson v. Weston, 7 Coweu, 278, 280. 
 ' Phillips V. Hall, 8 Wend. 610. 
 
 •5 Anthony v. Comstock, 1 E. I. Eep. 454. 
 
Deposits. 35 
 
 his duty by returning it at the end of the litigation, when called for, in 
 a condition as available for the purposes of the attachment as it was 
 when he received it ; notwithstanding it has been run by the owner and 
 altered and repaired. Property of this kind will depreciate as rapidly 
 while lying still, rotting at the wharf, as it will in service ; and hence 
 no action accrues against the receiptor on account of the use of the 
 boat, or the alterations and repairs made on it, where he returns it in a 
 state and condition as valuable as when he received it, or as valuable 
 as it would have been without any use whatever.^ There are other 
 kinds of property that could only be preserved by a reasonable use 
 pending the litigation : e. g., milch cows or a span of horses would be 
 injured for the want of use ; not to speak of vegetables and fruits, that 
 are liable to decay. To prevent the consequences of this depreciation, 
 our statute directs the sheriff, when so ordered by the court or judge, to 
 sell perishable property seized by him under an attachment, and hold 
 the proceeds in lieu of the property.^ In the absence of any statute on 
 the subject, it is the duty of the of&cer, or of the person taking charge 
 of the property on his behalf, to take reasonable care of it, considering 
 its nature. Under a litigation protracted through a number of years 
 (the case of the steamboat lasted six years), the mode of preserving the 
 property becomes a matter of great moment, and requires considerable 
 latitude in the use of means.' 
 
 § 33. The sheriff levying upon property under an execution, or seizing 
 it under an attachment, acquires a special property or interest in it and 
 has a right to defend the title acquired by him by an answer or by an 
 action, to protect his own interest, or that of the creditor on whose be- 
 half he acts.* Having attached the goods or made his levy, the general 
 property remains in the owner until the sale, and a special property 
 vests in the officer who may defend the same, or maintain an action for 
 its recovery.^ If the property be taken from his possession by an action 
 
 1 Hartshorn v. Ives, 4 R. I. 471. Steamboat Massachusetts running on the Long 
 Island Sound; see Alvord v. Davenport, 43 Vt. 30. 
 
 2 X. Y. Code of Civil Procedure, § 656. To render property "perishable" within 
 the meaning of the statute it must be inherently liable to deterioration and decay. It 
 is not enough to justify an order for sale that the property is liable to depreciate in 
 value because of changes in styles and fashions. Fisk v. spring, 25 Hun, 367. 
 
 ^ Davis V. Ainsworth, 14 How. Pr. 346. In this case potatoes were ordered sold as 
 perishable property. As to the effect of the failure of a bank or trust company hold- 
 ing a fund attached, see McBride v. Farmers' Bank of Salem, 28 Barb. 476. 
 
 * Einohey v. Stryker, 28 N". Y. 45. As to the extent of the sheriff's right to sue or 
 defend in aid or defense of his levy under a warrant of attachment, see Anthony v. 
 Wood, 96 N. Y. 180; Thurber v. Blanck, 50 N. Y. 80; Castle v. Lewis, 78 N. Y. 131. 
 
 5 Thayer v. Willet, 5 Bosw. 344, 357; Giles v. Grover, 6 Bligh. 277; Scott v. Morgan, 
 94 K. Y, 508, 515. 
 
36 Law of Bailments . 
 
 of replevin and he obtains judgment in the suit, he has aright, and it is 
 his duty to prosecute the sureties in the replevin suit ; because the un- 
 dertaking given by them becomes the equivalent for the property.^ 
 
 § 34. The sheriff is not bound to take the goods into his actual custody ; 
 it vrould be hardly possible for him always to do so.- He may leave 
 them vi^ith the defendant, or with any other person, upon such terms as 
 he chooses to make, being himself responsible for them. If the property 
 levied upon consist of live stock, he may hire an agister to keep it ; if 
 it consist of merchandise, he may place it in a warehouse for storage ; 
 and these contracts are perfectly legal and valid. The question now 
 arises, what rights do these contracts confer upon the officer's bailee ? 
 He was formerly regarded as the mere servant of the officer, having no 
 such interests in the property as would enable him to defend it against 
 a stranger.^ 'He was held responsible for the property under his 
 promise ; * and yet because he had no pecuniary interest in it, the courts 
 for a while denied him the right to maintain an action for its recovery."^ 
 The rule did not work well. It was found that a duty enforced by law 
 must have its correlative right ; that if the law holds the receiptor 
 responsible for the property, it must accord to him adequate means of 
 defending it. It is therefore now settled upon principle and authority 
 that he may follow the property, and maintain an action for its recovery 
 against any person who takes it wrongfully from his possession." 
 
 § 35. The receiptor ordmarily engages to keep and return the goods 
 when called for by the sheriff. In terms the contract binds him uncon- 
 
 1 Swezey v. Lott, 21 N. Y. 481. 
 
 2 Smith V. Orser, 42 N". Y. 132. In making a levy under a warrant of attachment 
 upon personal property capable of manual delivery, including a bond, promissory 
 note, or other instrument for the payment of money, the sheriff must take the prop- 
 erty into actual custody. N. Y. Code of Civil Procedure, § 649; Anthony v. Wood, 
 96 N. Y. 180. In levying an attachment upon the interest of one member of a firm, 
 the sheriff is hound to seize and safely keep the property though he has some freedom 
 in the choice of the means of doing this. The seizure of tlie property is a duty, and 
 it is an official act. Gumming v. Brown, 4:5 N". Y. 514. The firm property is first 
 liable for the firm debts. Eighth X-it. Bank v. Pitch, 40 N. Y. .'^JO. After the levy 
 upon the interest of one or more partners in a firm, the remaining partners may 
 obtain a discharge of the attachment in the manner prescribed by the statute. See 
 N. Y. Code of Civil Procedure, §§ 693-096. 
 
 8 Dillenbeck v. Jerome, 7 Cowen, 294, and cases there cited; and Ludden v. Leavitt, 
 9 Mass. 104. 
 
 * Lockwood V. Bull, 1 Cowen, .322. 
 
 5 His situation was just like that of any other bailee without hire. Faulkner v. 
 Brown, 13 Wend. 03. 
 
 « Miller v. Adsit, l(i Wend. 335 ; Thayer v. Hutchinson, 13 Vt. 504. The receiptor is 
 more than an agent. Terwilliger v. Wheeler, 35 Barb. 620. 
 
Deposits. 37 
 
 ditionally ; in substance, it binds him to an honest and faithful per- 
 formance of his engagement as a bailee.^ He does not undertake to 
 defend the title to the property ; and it is quite clear that he wlU be 
 discharged from his liability to the officer, where the attachment is 
 dissolved or the execution is set aside.^ 
 
 It is conceded that the receiptor may bind himself absolutely to re- 
 turn the property or pay the execution. The sheriff, who jnay insure 
 the property against loss by fire,' has a right to stipulate for an under- 
 taking that will be sure to cover his liability. If he insures the prop- 
 erty, though not bound to do so, the money realized in case of a loss 
 insured against, will take the place of the property; i. e., it will belong 
 to the plaintiff in the execution. So if he obtains a valid promise from 
 the receiptor binding him in spite of all casualties or accident to rede- 
 liver the property or pay the amount due on the execution, he is bound 
 to enforce it ; the judgment creditor is entitled to the benefit of the 
 contract.^ The engagement becomes a new security for the payment 
 of the debt, collectible in the name of the sheriff, 5— a security that may 
 be enforced notwithstanding the property is lost or destroyed by 
 flre.^ 
 
 , § 36. General and Special Property. One who has the title to any 
 valuable thing, has what is legally termed the general, or absolute prop- 
 erty in it. There is also what is known in the law as a special, hmited, 
 or qualified property. Absolute property in goods draws after it the 
 possession of them as a construction of law, so that if no adverse right 
 of possession is shown, it is presumed to rest with the owner.' A special 
 property arises out of contract with the owner for the temporary use or 
 
 1 Brown v. Cook, 9 John. K. 361 ; Edson v. Weston, 7 Cowen, 278. 
 ^Butterfield v. Converse, 10 Cashing (Mass.) 317; Grant v. Lyman, 4 Met. 470; 
 Sprague v. Wheetland, 3 Met. 416. 
 s White V. Madison, 26 N. T. 117. 
 * People V. Eeeder, 25 N. T. 302; Penobscot Boom Co. v. Wilkins, 27 Maine, 345. 
 
 5 Acker v. Burrall, 21 Wend. 605; S. C. 23 Wend. 606. 
 
 6 Cornell v. Dakin, 38 N. T. 253, 259. In Browning v. Hanford, 5 Hill, 588, .Judges 
 kelson and Bronson, the majority of the comt, interpreted the promise to redeliver 
 the chattels or pay the execution as not binding the receiptor any more strictly than 
 his legal duty binds the sheriff. A question of evidence afterwards arose in the same 
 case, viz., as to the effect of the sheriff's return as evidence of a loss by fire; 7 Hill, 
 120; in the Court of Errors the decision held the sheriff's return priina/acie evidence 
 only of his official acts. Two senators held that the receipt bound the receiptor for 
 the goods unless they were destroyed through the act of God or the public enemies. 
 The case did not necessarily involve that point; and It is impossible to ascertain the 
 opinion entertained upon the question by at least fourteen members of the court. 
 
 ' 1 Cowen's Trea.athed. 340. 
 
38 Law of Bailments. 
 
 keeping of goods, or by the operation of law, as already mentioned ia 
 the case of a levy by a sheriff on execution.^ Common carriers intrusted 
 with property for conveyance, have a qualified interest in it suflcient 
 to enable them to defend the same against everybody except the rightful 
 owner.^ This special property in the carrier arises out of the nature 
 and terms of his contract to carry safely and deliver the goods at the 
 place of destination ; and the right of action vesting in him accompanies 
 the possession as an instrument for its defense. A special property is 
 likewise vested in the factor to whom goods are consigned for sale, and 
 the right of action accrues to him as against third persons, even before 
 he has acquired the actual possession of them.^ Commonly, it is true, 
 the possession must accompany the special property in order to raise a 
 right of action in the bailee.* Indeed, the rule is, that in order to give 
 the bailee a right of action, he must have both the possession and a 
 special property in the goods. ^ But a possession under the owner, as a 
 common bailee, without hire, is enough as against strangers and 
 wrong-doers; where the present right of possession unites with 
 the right of property, either general or special, an action may be 
 maintained." 
 
 An action in the nature of trover may be maintained for the conver- 
 sion of a note, bond or draft, the same as for the conversion of chattels, 
 regard being had to the nature of the security. A sale of a negotiable 
 note, without title, is a conversion, the same as the sale of a chattel ; ' 
 and the plaintiff may recover prima facie the face of the note as dam- 
 ages." In the action for a bond, the plaintiff need not recite the instru- 
 ment, or give its date ; but he ought to set it forth sufficiently to show- 
 its nature and the parties to it.' The situation of the parties, as well 
 as the nature of the securities, is often important in its bearing upon 
 the fact of conversion.'" 
 
 The action of trover will lie for the conversion of a given package of 
 bank bills or a bag of coin ; and it will lie for the conversion of money, 
 where the amount is definitely ascertained without specific identiflca- 
 
 1 Gary v. Houghtaling, 1 Hill, 311; Root v. Chandler, 10 Wend. 110. 
 
 2 7 T. E. 12. The carrier has a right of possession against the tert feasor. 
 ' Smith V. James, 7 Cow. Rep. 328, and the cases there cited. 
 
 * 4 East, 214. 
 
 5 Faulkner v. Brown, 13 "Wend. 63. 
 « Sutton V. Buck, 2 Taunt. 309. 
 
 ' Keutgen v. Parks, 2 Sand. 60; Everett v. Coffin, 6 Wend. 603; Murray v. Burling, 
 10 John. R. 172. 
 
 8 Decker v. Mathews, 5 Sand. 439; S. C. 12 N". T. 313. 
 
 9 Pierson v. Townsend, 2 Hill, 550; Clowes v. Hawley, 12 John. 4S4. 
 M Gould V. Gould, 35 Barb. 270; Smith v. Maine, 25 Barb. 33. 
 
Deposits. 39 
 
 tion of the coins or bills.^ No closer identification is required than that 
 which the law calls for in an action for grain or goods.^ 
 
 § 37. A mere depositary or gratuitous bailee is said to have a special 
 property hi the goods entrusted to him ; and it is conceded he may 
 maintain an action to recover their value against any stranger who con- 
 verts the property, or through whose negligence it is lost or injured.' 
 He need not have any real or beneficial interest in the goods ; his law- 
 ful possession as a bailee and his liability on the implied contract for 
 safe keeping give him a right of action.* The finder of a chattel acquires 
 no right of property in it as against the rightful owner, and yet the law 
 enables him to defend it against everybody else by an action of trover; 
 it assumes that he has a special limited or qualified property in it, valid 
 against all the world except the owner."" The receiptor to the sheriff 
 has no direct actual interest in the goods ; he has the possession of the 
 goods, and he has contracted to redeliver them ; his possession and his 
 liability together enable him to recover against a wrong-doer who in- 
 jures or takes the property from him without right.' 
 
 It is clear then that a bailee of goods, a depositary without having any 
 beneficial interest in the goods themselves, does have such a possessory 
 interest in them as will enable him to defend them by an action at law.' 
 It follows that every bailee of goods must have the same right. 
 
 A naked prior possession of chattels, where nothing else appears to 
 qualify its character, is enough to establish a right of action in the 
 plaintiff, and put the defendant upon showing by what title he claims 
 to hold them. This is upon the principle that possession, until the con- 
 trary appears, is evidence of title which must prevail, until it is over- 
 come by testimony.' 
 
 The plaintiff, having a special property inthe goods, may recover their 
 
 1 Graves v. Dudley, 20 N. T. 76; Gordon v. Hostetter, 37 N. Y. 99. 
 
 2 Kimberly v. Patchin, 19 N. T. 330. 
 ' Chamberlain v. West, 37 Minn. 54. 
 
 * Faulkner v. Brown, 13 Wend. 63. The plaintiff was the depositary of a roll of 
 leather, which was stolen and afterwards sold to the defendant. Moran v. Portland, 35 
 Maine, 55 ; plamtiff in this case sued as the depositary of a carpet bag. Kellogg v. 
 Sweeney, 1 Lansing, 397; S. 0. 46 N. T. 291; the guest at an inn sued the landlord for 
 the value of a bag of gold coin, the possession of which he held as a mere mandatary. 
 
 5 Armory v. Delamirie, 1 Stra. 505; 3 Salk. 365; McLaughlin v. Waite, 9 Cowen, 
 670; Hamakerv. Blanchard, 90 Pa. St. 377; Tancilv. Seaton, 28Gratt. 601; Lawrence 
 V. Buck, 62 Me. 275; Durfee v. Jones, 11 E. I. 588. 
 
 « Miller v. Adsit, 16 Wend. 335; Thayer v. Hutchinson, 13 Vermont, 504. 
 
 ' Rooth V. Wilson, 1 Barn. & Aid. 59; Howorth v. ToUemache, 5 Scott N. E. 332. 
 
 8 Duncan v. Spear, 11 Wend. 54; Pish v. Scutt, 21 Barb. 333; Wickes v. Adiron- 
 dack Co., 2 Hun, 112; Wiseman v. Lynn, 36 Ind. 259; Tremont Coal Co. v. Manly, 
 eo Pa. St. 384. 
 
40 Law of Bailments. 
 
 full value against any one but the general owner who wrongfully takes 
 them from his possession ; ^ or against one by whose negligence they are 
 injured or lost.^ 
 
 § 38. The general owner of goods, having a present right of posses- 
 sion, may also maintain either trespass or trover against a stranger for 
 an injury or conversion of the property.'' The action may be brought 
 by the bailee or by the general owner ; the right to sue is indispensable 
 to enable each to protect his particular interest ; and a judgment in an 
 action by the general owner will bar an action by the bailee.* 
 
 § 39. With us the form of the action is not now material. Under the 
 common law practice the general owner of goods bailed without reward, 
 as in the case of a gratuitous loan or deposit or mandate, may maintain 
 the action of trespass against a third party for taking them, because he 
 has the constructive possession, or the right to reduce the goods to his 
 actual possession at any time ; '' and he cannot maintain that action for 
 his goods, bailed for hire on a definite term which is yet unexpired.^ So 
 also the general owner of goods in the hands of a gratuitous bailee has 
 a present right of possession sufficient to enable him to maintain the 
 action of trover against a stranger. In both these common law actions, 
 the plaintiff must have a property in the goods and constructive posses- 
 sion, i. e., a present right of possession.^ 
 
 These rules of procedure, though they appear on a first readuag im- 
 portant only to insure a right choice of the action to be brought, do 
 really show the true relation existing between the bailor and bailee. 
 They assume that a gratuitous bailee for an indefinite time has no right 
 or interest in the goods which he can assert against his bailor ; that he 
 is lawfully in possession and has such a right or interest in the goods 
 against every one else. It follows that he is not liable to an action for 
 the goods by the owner or by the bailor, until after a demand and 
 
 1 Alt V. Weidenberg, 6 Bosw. 176; Kissam v. RolDerts, id. 154; Spoor v. Holland, H 
 Wend. 44.j; Chadwick v. Lamb, 20 Barb. 518; IngersoU v. Van Bokkelin, 7 Cow. 
 670, 681; Heard v. Brewer, 4 Daly, 136. And see Allen v. Judson, 71 X. Y. 77; 
 Fowler v. Haynes, 91 N. Y. 346. 
 
 2 Kellogg V. Sweeney, 46 N. Y. 291; S. C. 1 Lansing, 397. 
 ' Thorp V. Bueling, 11 John. K. 285. 
 
 * Greene v. Clarke, 12 N. Y. 343; N. J. Steam N"av. Co. v. The Merchants' Bank, 
 6 How. U. S. R. 344; Baird v. Daly, 57 N. Y. 236. 
 
 6 Orser v. Storms, 9 Cowen, 687; Ely v. Elile, 3 K. Y. 506. 
 
 « Putnam v. Wyley, 8 John. E. 432. 
 
 ' Gordon v. Harper, 7 Durnford & East, 9; Niqhols v. Bastard, 2 Cromp. il. & Eos. 
 659; Bloxamv. Sanders, 4 Barn. & Cress. 941; Ferguson v. Christall, 5 Bing. 305. 
 It doe; i:o'; follow that the general owner of goods, let on hire for a term, is without 
 a remc.V/ .or an injury to his reversionary interest; he has an action on the case there- 
 foi-. iifarj 1. London .t S. Western E. Co., 11 Com. Bench N. S. 850. S54. 
 
Deposits. 41 
 
 refusal.* A borrower for an indeflnite time is not liable to an action 
 until after a demand,'-' unless it appears that he has delivered it 
 to another party without authority;* or misappropriated it in bad 
 faith." 
 
 § 40. It is necessary to fix the date when an action may be brought 
 against a gratuitous bailee, in order to ascertain the time when the stat- 
 ute of limitations will begin to run against the action. The depositary 
 of goods holds them in trust, subject to the owner's order ; ^ he is not in 
 fault, and therefore no action lies against him until, being called upon 
 for the goods, he refuses to deliver them. The same rule applies to a 
 deposit of money on call ; the depositary is not liable to an action until 
 a demand is made therefor and the money refused. The situation is 
 the same as it is where a man deposits money in a bank payable to his 
 order or on his check. A suit cannot be brought until after a refusal 
 to pay on the usual demand ; and the statute does not run until the 
 action accrues." 
 
 § 41. Where money is deposited in a bank in the ordinary course of 
 business, it does not raise a contract of bailment. The transaction 
 amounts to a loan without interest, and creates the relation of debtor 
 and creditor ; the bank receives the money and tmdertakes to repay the 
 same on demand at all events. The fund is mingled with other moneys 
 and becomes an absolute debt due from the bank, for which it is liable 
 even though the money be lost without any fault on its part. It is called 
 a deposit ; but this word is now used to describe the formal act of delivery 
 to the bank, and does not declare the nature and effect of the transac- 
 tion.' A deposit in a savings bank has the same effect as an ordinary 
 deposit in other banks. The depositor transfers his money, and takes 
 
 1 Brown V. Cook, 9 John. K. 361; Phelps v. Bostwick, 22 Barb. 314; Beardsleev. 
 Eichardson, 11 Wend. 2.5; Koss v. Clark, 27 Mo. 549. 
 
 2 Gilbert v. Man. I. Manuf. Co., 11 Wend. 625; Eyerson v. Kauffield, 13 Hun, 386. 
 
 3 Esmay v. Fanning, 9 Barb. 176. 
 
 * Pratt V. Bogardus, 49 Barb. 89, 95. It has been held that a failure to return with- 
 in the time limited is a conversion. Clapp v. Nelson, 12 Texas, 370. 
 
 5 Ball V. Liney, 48 N. T. 6; Winkley v. Faye, 33 N. H. 171. 
 
 6 Payne v. Gardiner, 29 N. T. 146; S. C. 39 Barb. 634; Downes v. The Phtenix 
 Bank of Charlestown, 6 Hill, 297; Boughton v. Flint, 74 N. T. 476; Howell v. Adams, 
 68 N. Y. 314; Smiley v. Fry, 100 N. T. 262; Munger v. Albany City Kat. Bank, 85 
 N. Y. 580. 
 
 ' Commercial Bank of Albany v. Hughes, 17 Wend. 94, 100; Carroll v. Cone, 40 
 Barb. 220; Dykers v. The Leather Manuf. Bank, 11 Paige's Ch. 612; Marsh v. Oneida 
 Central Bank, 34 Barb. 299; Libby v. Hopkins, 104 U. S. 303; Phoenix Bank v. 
 Eisley, 111 U. S. 125; Cragiev. Hadley, 99 N. Y. 131; Metropolitan Nat. Bank v. 
 Loyd, 90 N. Y. 530. 
 
42 Law of Bailments. 
 
 back a promise of repayment with interest from the bank, a chose in 
 action.^ 
 
 There is nothing in its nature to prevent a bailment of money. If a 
 parcel of bank bills or a bag of coin be deposited with a bank or with 
 any other person, on a promise to redeliver the specific bills or coin, the 
 transaction creates a bailment ; the title does not pass.^ It may be, it 
 is often difficult to trace money, either in bills or coin ; being identified, 
 the title will be protected the same as the title to goods.' It is property 
 which may be levied upon by a sheriff, or delivered on a contract of 
 bailment.^ The deposit of money on interest or for use is not a bail- 
 ment ; it is intended to pass the title ; it creates a debt. It is however 
 in the nature of a deposit, payable when called for ; so payable by the 
 terms and substance of the contract.'' On this account a deposit is dis- 
 tinguished from a loan of money ; the statute of limitations begins to 
 run against a suit on a note, payable on demand, from its date, no actual 
 demand being necessary.^ In the case of a deposit, the statute runs 
 from the time when a suit may be brought against the depositary, 
 namely, from the time of the demand and refusal. 
 
 § -42. Where the depositary converts the goods, the owner's action 
 for the conversion accrues at once, and the statute begins to run from 
 that time ; as subsequent demand and refusal will not create a new start- 
 ing-point ; or what is the same thing, in effect, a new cause of action.' 
 A refusal to deliver on demand, made after a sale or other disposition 
 of the goods, does not show a conversion of the property ; the refusal 
 is evidence of a conversion, and sometimes equivalent to the act itself. 
 At all events, the depositary is entitled to fair play and a reasonable 
 
 ' Lund V. The Seamen's Bank, 37 Barb. 129; Chapmau v. White, 6 X .T. 412, 417; 
 Warhus v. Bowery Savings Bank, 21 N. T. 543; People v. Mechanics & Traders' 
 Savings lust., 92 X. T. 7. 
 
 2 Graves v. Dudley, 20 N. T. 76, 80; Draycott v. Piot, Croke's Eliz. 818, 841. 
 
 8 Tradesman's Bank v. Merritt, 1 Paige, 302; Mechanics' Bank v. Levy, 3 Paige, 
 606; McBride v. The Fanners' Bank, 26 N. T. 4o0, 450. 
 
 * McBride v. The Farmers' Bank of Salem, 28 Barb. 470; Thatcher v. Bank of 
 State of N. T., .5 Sand. 121. 
 
 5 The Kingston Bank v. Gay, 19 Barb. 459; Adams v. Orange Co. Bank, 17 Wend. 
 513, 515; Lund v. The Seamen's Bank for Savings, 37 Barb. 129. 
 
 6 Howland v. Edmonds, 24 N. Y. 307; Wheeler v. Warner, 47 X. T. 519. See Mer- 
 ritt V. Todd, 23 N". Y. 28; Herrick v. Woolverton, 41 N. Y. .581, 591, 596; McMullen 
 V. Eafferty, 89 N". Y. 456; DeLavallette v. Wendt, 75 N". Y. 579; Bartholomew v. 
 Seaman, 25 Hun, 619; Milne's Appeal, 99 Pa. St. 483; Andress's Appeal, 99 Pa. St. 
 421; :Mills v. Davis, 113 N. Y. 243; Kraft v. Thomas, 123 Ind. 513; Jones v. NichoU, 
 82 Cal. 32. 
 
 ' Granger v. George, 5 Barn. & Cress. 149; Kelsey v. Griswold, Barb. 436; Bruce 
 T. TUson, 25 N. Y. 194. 
 
Deposits. 43 
 
 opportunity to ascertain the claimant's right of property.^ An un- 
 qualified refusal or an attempt to set up title in a third party, is a con- 
 version ; '"■ as where the bailee gives a receipt to a third party for the 
 goods and agrees to hold them to his order.^ But a wrongful act is 
 not to be presumed, even in favor of a long continued possession. 
 
 A conversion may be waived by the owner of the goods, so as to pre- 
 clude him from bringing an action therefor ; * but the wrong-doer does 
 not relieve himself from liability by an offer to restore or replace the 
 goods, after an act of conversion.' 
 
 § 43. Rule of Liability. A gratuitous bailee is bound to take reason- 
 able care of the goods entrusted to him ; the same or as much care 
 as he takes of his own property of a like kind ; such care as the cir- 
 cumstances and the nature of the property naturally call for.^ The 
 same rule applies to the depositary and to the mandatary ; the deposi- 
 tary receives the goods to keep gratuitously, until the owner requires 
 them ; and the mandatary receives them to carry and deliver or to 
 perform some act in relation to them, without recompense ; in each 
 case the bailee assumes an office of friendship and good will, and is 
 bound merely to use a slight degree of diligence. In other words, he 
 is only liable for a loss or injury to the goods resulting from his gross 
 negligence ; or what is the same thing, from, his omission to use slight 
 dihgence. For in the legal sense, a failure to use shght diligence or 
 that care which every man of common sense, however tuattentive, takes 
 of his own goods, is considered gross negligence ; ' these terms being 
 used interchangeably as practically equivalent to each other. 
 
 Under the rule as it is usually stated, the depositary of goods, re- 
 ceiving them gratuitously, without any agreement to keep them safely 
 or take any special care of them, is not responsible for their injury or 
 loss unless it happens through his gross neglect or fraud.^ 
 
 1 Carroll v. Mix, 51 Barb. 212; Ball v. Liney, 48N. T. 6; McEntee v. N. T. S. Co., 
 45 N. T. 34. 
 
 2 Kogers v. Weir, 34 N. T. 463. 
 
 s Holbrook v. Wight, 24 Wend. 169. 
 
 * Stewart v. Drake, 46 N. Y. 449. 
 
 5 Livermore v. Northrup, 44 N. T. 107; Anthony v. Comstock, 1 K. I. 454; Wood 
 V. Pales, 24 Penn. St. 246; Brewster v. Silliman, 38 N. T. 423. ISTew Tork City v. 
 Lent, 51 Barb. 19; property peculiar; an autograph letter of Geo. Washington. 
 
 * Coggs V. Bernard, 2 Ld. Kaym. 909; Foster v. The Essex Bank, 17 Mass. 479. 
 
 ' Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275 ; Dougherty v. Posegate, 3 Clarke, 
 Iowa, 88; Jones on Bailm. 112. 
 
 'McKay v. Hamlin, 40 Miss. 472; Gulladge v. Howard, 23 Ark. 61; Spooner v. 
 Mattoon, 40 Vt. 300; Persch v. Quiggle, 57 Penn. St. 247; Johnson v. Reynolds, 3 
 Kansas, 257; Hills v. Daniels, 15 La. An. 280; Newhall v. Paige, 10 Gray, 366; 
 
44 Law op Bailments. 
 
 § 44. It is manifest that the care required must be such as the cir- 
 cumstances and the nature of the property demand ; that is to say, in 
 applying the general rule, respect must be had to the situation of the 
 parties and to the particular kind or character of the property which 
 is the subject to the bailment. One who receives a picture, a cartoon 
 for example, is bound to have a care that it be not placed in an exposed 
 situation, as against a damp wall ; '■ and one who receives money on 
 deposit must use a degree of diligence and attention adequate to the 
 performance of the trust.^ A delivery of money to invest without 
 compensation, would fall within the definition of a naked bailment, and 
 it would certainly create a trust which would call for a high degree of 
 prudence and good sense in its execution ; the mandatary would prob- 
 ably be held bound by the rule applicable to an ordinary trustee.' 
 
 The nature and value of the deposit, and the circumstances attending 
 the bailment, naturally fix the attention of the bailee, and as naturally 
 indicate the precautions to be taken for the safety of the property. A 
 soldier in camp receiving money from his friend for safe keeping, will 
 spontaneously keep and carry it with a care to prevent its being lost or 
 stolen *; the bailee will do the same thing passing through the crowded 
 streets of a city ; ^ or in any casual crowd, so apt to be infested and 
 plundered by well dressed thieves." Now the law requires from the 
 bailee just these natural precautions, dictated by the situation and 
 circumstances of the bailment : and in applying the established rule of 
 liability, it is the province of the court in each case to remark upon and 
 give due weight to the circumstances of time, place and danger attend- 
 ing the loss.' The reason of the situation materially affects the rule of 
 law ; it gives rise to the rule, and it presides over its enforcement. 
 
 Dougherty v. Posegate, .3 Clarke, Iowa, SS; Conwell v. Smith, S Ind. ."53(7; Edson v. 
 Weston, 7 Cowen, 278; Onderku-k v. Central Xat. Bank, 119 N. Y. 2ii3; Heathering- 
 ton V. Richter, .31 W. Va. 8.'j8; Tancil v. Seaton, 28 Gratt, 601; Schermer v. Neurath, 
 54 Md. 491; Davis v. Gay, 141 Mass. 531; Carrington v. Ficklin, ;32 Gratt. 670; Patter- 
 son T. Mclver, 90 N. V. 493; Whitney v. First Nat. Bank, .j.3 Yt. 15.j. 
 
 1 Mytton V. Cock, 2 Str. 1090. 
 
 2 Jenkins v. Matlow, 1 Sueed (Tenn.), 248; and Tracy v. Wood, 1 Mason, 132. 
 
 8 King V. Talbot, 50 Barb. 4.53, 482; S. C. 40 N. Y. 76, 86. A trustee must invest 
 on bond and mortgage or in government funds, or in bonds or stocks of cities of this 
 State issued pursuant to a law of this State. See Laws of 1889, Chap. fi."j. 
 
 * Spooncr v. Jlattoon, 40 Verm. R. 300. 
 
 6 The Eendsberg, 6 Bob. 141, 1.15. 
 
 6 Graves v. Ticknor, 6 N. H. 537; Nelson v. Mcintosh, 1 Starkie N. P. 188. 
 
 ' Whitney and wife v. Lee, 8 Metcalf, 91. A promissory note was delivered to a 
 bailee "to secure and take care of it;" held without explanation that this was a 
 bailment merely for safe keeping, and that the bailee was liable only for fraud or gross 
 negligence. Cn. J. Shaw: " The law has endeavored to make a distinction in the 
 
Deposits. 45 
 
 § 45. The depositary must act with perfect fairness, dealing witli his 
 friend's goods as he does with liis own. Ordinarily this is the true 
 measure of his duty. The owner deposits a box containing gold and 
 negotiable securities in a bank, locked in the usual manner, and the bank 
 places it in its vault where it keeps its own coin and securities, without 
 compensation ; here we have a naked bailment, and the bailee is not 
 liable for a loss by theft or by the fraud of its agents or servants ; it is 
 not liable because it has exercised the same care of the parcel received 
 on deposit as it took of its own property of the same kind.' The de- 
 positor understands beforehand the circumstances of danger and safety 
 which invest the vaults of the bank ; and he cannot reasonably demand 
 any new precautions for the safety of his property.^ 
 
 degrees of care and diligence to which different bailees are bound ; distinguishing 
 between gross, negligence, ordinary negligence, and slight negligence; though it is 
 often difficult to mark the line where the one ends and the other begins. And it must 
 be often left to the jury, upon the nature of the subject matter and the particular cir- 
 cumstances of each case, with suitable remarks by the judge, to say whether the 
 particular case is within the one or the other. Subject to these remarks upon the 
 application of these distinctions, we think it well settled, that a bailee for safe keep- 
 ing, without reward, is not responsible for the article deposited, without proof that 
 the loss was occasioned by bad faith or gross negligence. This rule was settled on 
 great consideration, and after full deliberation, in Foster v. Essex Bank, 17 Mass, 
 479." 
 
 1 Foster V. Essex Bank, 17 Mass. 479; Onderkirk v. Central Nat. Bank, 119 N. T. 
 263, 271; Caldwell v. Hall, 60 Miss. 410; Whitney v. First Nat. Bank, 55 Vt. 155;, 
 Smith V. First National Bank of Westfield, 99 Mass. 605. II. S. bonds were enclosed 
 in an envelope and deposited with the bank in its vault in the usual way for safe 
 keeping; not being restored on demand, held that defendant was liable only for want 
 of ordinary care, or for gross negligence ; liable for the negligence of its officers or 
 servants, but not liable for their theft. Maury and Oshorn v. Coyle, 34 Md. 235, 247; 
 Lancaster Co. National Bank v. Smith, 62 Pa. St. 47; Glover v. Burbidge, 27 S. C. 
 305; Schermer v. Neurath, 54 Md. 491. 
 
 2 Our safety deposit companies are organized for the purpose of insuring to the 
 owner a greater degree of safety. The rule of law is held the same in several States. 
 Griffith V. Zipperwick, 28 Ohio St. 388; Scott v. Bank of Cherry Valley, 72 Penn. St. 
 471, 478; First National Bk. of C. v. Graham, 79 Penn. St. 106; 19 Amer. E. 122, 181. 
 The act of receiving -luch security for safe keeping can hardly be considered un- 
 authorized when it is done habitually, with the privity and knowledge of the directors 
 and officers of the bank. First Nat. Bank of C. v. Graham, 100 U. S. 699. The right 
 to make the contract and the rule of liability are fully discussed in First National 
 Bank v. Ocean Nat. Bank, 00 N. Y. 278, where the recent authorities are cited; and 
 Wiley V. First Nat. Bank, 47 Vt. 546. It is now settled that if a bank is accustomed 
 to take special deposits of bonds and stocks, and this is known and acquiesced in by 
 the directors, and the property thus deposited is lost by the gross carelessness of tlie 
 bank, the bank is liable in like manner as if the deposit had been authorized by its 
 charter. First Nat. Bank v. Graham, 100 U. S. 699, 702; Manhattan Bank v. Walker, 
 130 U. S. 267; Turner v. Bank of Keokuk, 26 Iowa, 562; Smith v. Bank of Westfield, 
 
40 Law of Bailments. 
 
 § 46. The rule cannot be stated with much precision. Good faith 
 requires of the depositary that he shall take the same care of the goods 
 which he receives on deposit, as he does of his own ; and the law exacts 
 from him at least this measure of diligence. At the same time, it 
 cannot be affirmed that this is the limit of his liability ; because he is 
 answerable for a loss that happens through his gross neglect, and he 
 cannot excuse himself by showing that he has been equally negligent 
 in the care of his own property.^ 
 
 § 47. It has been argued that gross negligence by the bailee in the 
 care of goods is evidence of fraud, and equivalent to it in its effect upon 
 the contract. If by this we are to understand that the bailee is liable 
 for the goods lost or destroyed through either his bad faith or gross 
 negligence, the proposition must be accepted as good law : but if we 
 are to understand by it that gross neglect is the same thing as a viola- 
 tion of good faith, the 'doctrine cannot be maintained.- In a moral sense 
 gross negligence by the bailee bears a near resemblance to bad faith, 
 because his express or implied engagement binds him to a faithful keep- 
 ing of the property ; he has assumed an active duty, he is bound to take 
 care of the property. And a failure to do so evinces a want of good 
 faith, or faithfulness in the discharge of duty.^ 
 
 Under the Roman or civil law gross neglect was treated as equiva- 
 lent to fraud ; but the common law, under which different branches of 
 the same tribunal pass, one upon the principle, and the other upon the 
 conclusions of fact to be drawn from the evidence in the case, does not 
 pronounce absolutely upon a question which must be solved by infer- 
 ences.* It does not assume to declare what shall be taken as conclusive 
 evidence of fraud; in other words, it does not undertake to anticipate 
 and provide against fraud by any specific form of proof. It assumes 
 rather that the fertility of human invention is too great, and the fraudu- 
 lent devices and schemes of men too complex, to be classified ; it there- 
 fore leaves the question of fraud to be solved in each case as one of 
 fact.'^ 
 
 99 Mass. 605 ; Chattahoochee Bank v. Schley, .08 Ga. 369. A national bank as part of 
 its legitimate business may receive special deposits. First Nat. Bank v. Graham, 100 
 IT. S. 699; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82; Onderkirk v. Central Nat. 
 Bank, 119 N. Y. 263. 
 
 1 Tracy v. Wood, 3 Mason, lOii; Doorman v. Jenkins, 2 Adol. <.t Ellis, 256; Kooth 
 V. Wilson, 1 Barn. & Aid. 59; Eivara v. Ohio, 3 E. D. Smith, 264; Murray v. Clarke, 2 
 Daly, 102. 
 
 - See Hun v. Cary, 82 N. Y. 65, 72. 
 
 3 Jones on Bailm. 40 and 120; 17 Mass. 479. 
 
 * Tudor V. Lewis, 3 Met. Ky. 378. 
 
 5 Chesterfield v. Jansen, 2 Ves. Sen. 155; Mortlockv. BuUer, 10 Ves. 308. Fraud is 
 of the nature of crime, and must be afarmatively proved. Ward v. Center, 3 John. K. 
 
Deposits. 47 
 
 § 48. It was at one time held that the dehvery of goods to be safely- 
 kept does not create any greater liability than a simple deposit with- 
 out any stipulation ; on the authority of Lord Coke, that to keep and to 
 keep safely are one and the same thing. The modern doctrine does 
 not support the rule; it allows the bailee to lessen or enlarge his 
 liability by contract.^ In a common carrier's contract, a stipulation 
 to carry and deliver " safely and securely " does not enlarge his 
 liability ; ■' in a depositary's contract the engagement to keep safely in- 
 creases his obligation, though it can hardly be held to bind him absolutely 
 for the safety of the goods. It binds him according to its terms, giviag 
 to these a fair and reasonable interpretation.^ 
 
 The implied contract for the safe keeping of the goods by the depos- 
 itary, does not render him liable for a loss of them by fire, theft or 
 robbery, unless he has exposed them to such loss by his gross negli- 
 gence.* Even a bailee for hire is not liable for losses of this nature ; he 
 does not assume the risk of the misconduct or tortious acts of third 
 parties.* Hence the owner and not the baUee bears the risk of loss 
 from such extraneous causes. 
 
 § 49. Where a sealed package containing securities or a box con- 
 taining valuables, and locked, is delivered to a depositary to keep with- 
 out any information as to their contents, it is his duty to preserve them 
 with reasonable care ; such care as prudent men usually take of property 
 locked or sealed up in that way. He would not be required to assume 
 that the package contained bank bills or negotiable notes, or that the 
 box contained jewels, nor to keep the articles with the care with which 
 he would guard that kind of property. He would have a right to 
 
 211, 281. Fraud is not treated exactly the same in equity as at common law. Wil- 
 lard's Eq. 145, 14'7. 
 
 1 Coggs V. Bernard, 2 Ld. Eaym. 909-915; Alexander v. Greene, 3 Hill, 9; S. C. 7 
 Hill, 533; Dorr v. New Jersey Steam Nav. Co., 11 IT. T. 485, 491. 
 
 2 Austin V. Manchester & C. Eailway, 5 Eng. Law & Eq. 329; Collett v. The Lon- 
 don & N". Eailway Co., 6 Eng. L. & Eq. 305; Shaw v. York & N". M. Eailway Co., 13 
 Q. B. 347; Boss v. Hill, 2 Man. G. & Scott, 877. 
 
 s 2 Bl. Conrni. 452; Ames v. Belden, 17 Barb. 513; Hyland v. Paul, 33 Barb. 241. 
 
 * Hyland v. Paul, 33 Barb. 241; Southcote's case, 4 Co. Rep. 83, 84; Bonoin's case, 
 Fitz. Albridge. Detinue, 59; Coggs v. Bernard, supra; Foster v. Essex Bank, supra; 
 Finacue v. Small, 1 Esp. N. P. 315; Schmidt v. Blood, 9 Wend. 268; Monteith v. Bis- 
 sell, Wright, 411. 
 
 s Ewing V. French, 1 Blackford's (Ind.) E. 353; Norton v. Woodruff, 2 N. T. 153. 
 Under an express contract to keep safely, the bailee could hardly be bound to insure 
 the owner against such casualties. See Worth v. Edmonds, 52 Barb. 40; but he might 
 be liable for loss by negligence; Webb v. R., W. & O. E. E. Co., 49 K. Y. 420; and has 
 the right to incur the necessary expenses to insure the safety of the property; Harter 
 V. Blanohard, 64 Barb. 617. 
 
48 Law oi^ Bailments. 
 
 assume that the box or package contained no greater value than is 
 ordinarily enclosed in that manner ; because no bailee can be drawn by 
 artifice into a responsibility greater than he intended to assume.^ 
 
 § 50. The situation and circumstances may be shown as bearing 
 upon the depositary's liability : ^ can his individual character also be 
 made the subject of judicial investigation ? The manner in which his 
 liability is usually stated, assumes that it is material. Kent says, 
 " Such a bailee who receives goods to keep ffrati.^ is under the least re- 
 sponsibility of any species of trustee. If he keep the goods as he keeps 
 his own, though he keeps his own negligently, he is not answerable for 
 them ; for the keeping of them as he keeps his own is an argument of 
 his honesty." Again he says, " If the depositary be an intelligent, 
 sharp, careful man in respect to his own affairs, and the thing entrusted 
 to him be lost by a slight neglect on his part, the better opinion would 
 seem to be that he is then responsible." And Lord Holt is still more 
 emphatic : " If the bailee be an idle, careless, drunken fellow, and 
 comes home drunk, and leaves all his doors open, by reason whereof 
 the goods deposited are stolen, together with his own, he shall not be 
 charged, because it is the bailor's own folly to trust such an idle 
 fellow.** 
 
 So far as the character and habits of the depositary are developed 
 in the transaction, it is well nigh impossible to ignore them ; and yet it 
 seems quite clear that the depositary, sued for damages resulting from 
 his gross negligence, would not be allowed to prove as an independent 
 fact that he is habitually a very careless and improvident man, for the 
 purpose of reducing the measure of his liability. For in truth this 
 measure has no reference to his individual character ; it looks rather to 
 the general conduct and character of a whole class of persons ; it is not 
 so flexible that it can be adjusted to the infirmities of an individual.^ 
 
 1 Bonoin's case, Fitz. Abr. Detinue, 59; Part IV. Coke E. 83 b, 84 a. A common 
 carrier cannot be entrapped, by tlie artifice of pacliing, into liability for very valuable 
 articles under the guise of coarse and inexpensive goods. "Warner v. Western T. Co., 
 5 Eobt. 490; Orange Co. Bank v. Brown, 9 Wend. 85, 116. In one sense the depositor 
 of the box of securities does not intrust the securities with the depositary; delivered 
 to a banker they do not become subject to his lien ; Brandao v. Barrett, 12 Clark & 
 Finnelly, 787. Under the California Code the liability of a depositary for negligence 
 cannot exceed the amount which he is informed by the depositor or has reason to sup- 
 pose the thing deposited to be worth. Cal. Civil Code, § 1840. 
 
 2 Knowles v. Atlantic & St. L. E. E., 38 Maine, 5.5; Barry v. Marix, 10 La. Ann. I!. 
 248. 
 
 8 2 Kent's Comm. 561, 504. 
 
 ■• Conway Bank V. Amer. Ex. Co. 8 Allen, 512; Morse v. Crawford, 17 VI. 4::^; 
 Swann v. Brown, 8 Jones Law N. C. 150. 
 
Deposits. 49 
 
 The depositary's mode and means of keeping or storing like good •> 
 may be fairly considered, if known to the bailor at the time of the de- 
 livery ; and where he knows the place and the manner in which his 
 goods are to be kept, the law may fairly presume his assent m advance 
 that his goods shall be thus treated. Evidence of this kind would be 
 admissible to show either a contract for the keeping of the goods in 
 that manner, or a waiver of any greater degree of diligence in their safe 
 keeping.^ 
 
 § 51. It is laid down as the rule of the civil law that the depositary 
 is bound for a higher degree of diligence where he ofEers of his own ac- 
 cord to assume the custody of goods ; the reason assigned for the rule 
 being, that he thereby possibly prevents them from being placed in 
 more secure hands. Under the Code of Louisiana the usual rule of 
 liabUity is rigorously enforced, where the deposit is made at the re- 
 quest of the depositary.^ Assuming that he acts in good faith, why 
 should his previous offer of service be construed to his disadvantage ? 
 A civil motive, an expression of good will, is hardly sufHcient to 
 strengthen or intensify a rule of law. On a sudden emergency demand- 
 ing prompt action, as in the presence of a riot or fire, an offer to receive 
 your neighbor's goods should hardly be discouraged by a rule of law. 
 
 § 52. The natural increase of property accrues to the owner. Divi- 
 dends upon stocks, the interest upon securities, and the young of 
 domestic animals belong to the owner, and not to the depositary.' 
 This rule of reason has been applied and enforced in a great variety of 
 cases. It is assumed and acted upon, as we shall find, in all contracts 
 for the hiring of farms on shares ; * in contracts for the hire and return 
 of cattle or sheep on shares ; ' and in contracts involving a pledge of 
 personal property. 
 
 § 53. A Second Bailment. The person who has property on deposit, 
 so as to render him liable as a bailee, may enter into a contract of bail- 
 ment with a third person to whom he may deliver the goods for safe 
 keeping.^ But such a contract will not prevent the owner of the goods 
 from following them ; he can even, in some instances, maintain trespass 
 against the person who seizes them in the hands of his bailee, who has 
 
 1 Knowles v. Atlantic & St. L. R. R., 38 Maine, 55; and Conway Bank v. Amer. 
 Ex. Co., 8 Allen, 512. 
 
 2 Code of Louisiana, Art. 2908, 2909. 
 
 ' Orser v. Storms, 9 Cowen, 687; tlie case of the Swanns, — Coke Rep. 
 
 *Taylorv. Bradley, 39 N. Y. 129; Wilber v. Sisson, 53 Barb. 258; Caswell v. Dis- 
 trict, 15 Wend. 3*79. 
 
 ^Putman v. Wise, 1 Hill, 234. It is a sale when the hirer agrees to return a certain 
 number, but not the same sheep or cattle. Bartlett v. Wheeler, 44 Barb. 162. 
 
 ^Armory v. Delamirie, 1 Str. Rep. 505. 
 
 4 
 
50 Law of iiAiLr.iiiXTs. 
 
 no interest or claim to hold the goods coupled with his possession. The 
 rule of law applies here, that the general property draws after it the 
 possession.! Xot so where the bailee has a special property in the 
 goods as against the owner of them, such as the lien which the master of 
 a vessel has on the cargo for freight. In this case, the delivery of the 
 goods for safe keeping by the master who has a lien on them, is not 
 such a parting with the possession as destroys the lien. Generally, the 
 possession of the mere naked bailee is held in law to be the possession 
 of the depositor ; the undertaking of the depositary being gratuitous, 
 may be determined on demand. And where the bailee desires to free 
 himself from the responsibility incident to the contract, he may with- 
 out doubt do so on his own motion, by restoring the goods to the owner 
 or depositor. Not having stipulated to keep them for any particular 
 length of time, he cannot be compelled to continue an undertaking 
 wholly gratuitous on his part.^ 
 
 § 54. Redelivery. The rule is that the depositary is bound to redeliver 
 or restore the chattels bailed to the bailor ; ' and the bailor may recover 
 the goods of his bailee without proving his right of property in them ; 
 until the goods are seized by the right owner or by some superior title, 
 the depositary is compelled to restore the goods to the person from 
 whom he received them, whose right he cannot controvert.^ But if he 
 deliver them to the rightful owner, on demand, he has a good defense 
 against the bailor, since a delivery in such a case is not a matter of 
 choice.^ 
 
 § 55. To avoid the inconvenience of a double litigation, where there 
 are rival claimants to the property, and an action is brought against 
 the bailee for its detention, the law, in some cases, permits the adverse 
 claimant to be brought into the suit by the process of garnishment!' 
 But a much more convenient remedy is furnished in courts of equity 
 by a bill of interpleader, which may be filed where the plaintiff stands 
 in the situation of an innocent stakeholder, against defendants claiming 
 of him the property, fund or duty, by different or separate interests ; 
 the object being to protect the complainant against a double litigation, 
 involving also the danger of a double recovery against him. The bUl 
 lies only where the complainant is in possession, and claims no interest 
 
 1 Thorp V. Burling, 11 John. Rep. 286. 
 
 2 Eoulstou V. McClelland, 2 E. D. Smith, 60. 
 
 ^ Onderkirk v. Central ISTat. Bank, 119 N. T. 263, 267. 
 
 « EoU. Abr. 607; 1 Bae. Ab. 369. 
 
 6 King V. Eichards, 6 Wliarton, 418; Scranton v. M. &, F. Bank of Rochester, 24 
 N. Y. 424; Western Transportation Co. v. Barber, 56 N". Y. 544; Hentz v. The Idaho, 
 93 U. S. r,75. 
 
 « 2 Kent's Comm. 568. 
 
Deposits. 51 
 
 in the property in dispute.^ Its accepted definition is : "A bill exhibited, 
 when two or more persons claim the same debt or duty from the com- 
 plainant, by different or separate interests ; and he not knowing to 
 which of the complainants he ought of right to pay or render it, fears 
 that he may be damaged by the defendants (as by paying his money to 
 a wrong hand), and therefore exhibits his bill of interpleader against 
 them, praying that the court may judge between them to whom the 
 thing belongs, and that he may be indemnified. It claims no right in 
 opposition to those claimed by the persons against whom the bill is ex- 
 hibited, but only prays the decree of the court, to decide between the 
 rights of those persons for the safety of the complainant." ^ 
 
 The allegations in a bill of interpleader are : 1. That two or more 
 persons have preferred a claim against the complainant ; 2. That they 
 claim the same thing; 3. That the complainant has no beneficial inter- 
 est in the thing claimed ; and 4. That he cannot determine, without 
 hazard to himself, to which of the defendants the thing of right be- 
 longs.' 
 
 It is not necessary that an action or actions should have been com- 
 menced in order to give the right to file this bill,* nor that the claims 
 should be both of an equitable nature ; one may be an equitable and 
 the other a legal claim. But the bUl cannot be filed where the plaintiff 
 stands in the relation of a wrong-doer towards either of the claimants, 
 nor where one of them has a clear right to the exclusion of the other.* 
 To sustain the bill, there must also be some sort of privity between all 
 the parties, of estate, title or contract. Parties claiming in absolutely 
 adverse rights, not founded in any privity of title, or on any common 
 contract, cannot be compelled to interplead." 
 
 1 2 Barb. Ch. Prac. 118; Atkinson v. Manks, 1 Cowen, 691; Ball v. Liney, 48 K. T. 
 6, 13; Johnston v. Lewis, 4 Abb. Pr. N. S. 150; McKay v. Draper, 27 N. T. 256; 
 Schuyler v. Hargous, 28 How. Pr. 245; Crane v. McDonald, 118 N. T. 648. 
 
 2 Cooper's Equity Plead. 456; Harrison Ch. Pr. 96; Mad. Ch. 172, 3. 
 
 8 Atkinson v. Manks, 1 Cowen, 703; McHenry v. Hazard, 45 Barb. 657; U. S. Trust 
 Co. V. \yiley, 41 Barb. 477; Bassett v. Leslie, 123 N. T. 396, 399; Killian v. Ebbing- 
 haus, 110 U. S. 568; Crane v. McDonald, 118 N. T. 648. 
 
 4 Richards v. Salter, 6 John. Ch. E. 445. 
 
 6 Mohawk and Hudson Railroad Co. v. Clute, 4 Paige, 384; Shaw v. Coster, 8 Paige, 
 339; Morgan v. Fillmore, 18 Abb. Pr, 217; U. States v. Victor, 16 Abb. Pr. 153; Bas- 
 sett V. Leslie, 123 N". T. 396. 
 
 « Cooper Eq. PI. 43; Story's Eq. PI. 239; Vosburgh v. Huntington, 15 Abb. Pr. 254; 
 Boston Bank v. Skillings, etc., Lumber Co., 132 Mass. 410. Whether this rule still ex- 
 ists in this State is perhaps an open question. See Crane v. McDonald, 118 N. T. 648, 
 656, 657. The fact that the adverse titles of the claimants are both derived from a 
 common source is suificient to sustain an interpleader under the rule requiring privity 
 between defendants. Id. 
 
52 ijAW (jF Bailments. 
 
 § 56. Chattels deposited by several joint owners must be redelivered 
 on the joint demand of the persons making the deposit. Sir William 
 Jones mentions an instance in which this principle was applied in prac- 
 tice at Athens, ^\ith the remark that the doctrine was good at Rome as 
 well as at Athens, when the thing deposited was in its nature incap- 
 able of partition.' The civil and common law do not differ in this 
 respect; the thmg deposited must be restored to the joint owners or 
 proprietors making the deposit. But if the bailee accepts the property 
 from one of them, by whom as well as by the bailee it is treated as be- 
 longing to him exclusively, he will be protected by a redelivery of the 
 property to him who bailed it.^ 
 
 § 57. The civil and common law approximate each other so nearly in 
 respect to the obligation of the depositary relative to his duty to rede- 
 liver the subject of bailment, that it may be proper to mention briefly 
 the provisions of the Code of Louisiana, which is in substance the civil 
 law. The depositary by this Code must restore the thing deposited 
 only to him who delivered it, or m whose name the deposit was made, 
 or who was pointed out to receive it. He cannot require him who made 
 the deposit to prove that he was the owner of the thmg. Yet if he 
 discovers that the thing was stolen, and who the owner of it is, he must 
 give him notice of the deposit, requiring him to claim within due time. 
 If the owner, having received due notice, neglects to claim the deposit, 
 the depositary is fully exonerated on returning it to the person from 
 whom he received it. If the person who made the deposit be deceased, 
 the thing deposited can be restored only to his heir ; if there be several 
 heirs, it must be delivered to each of them for his respective part and 
 portion, unless the thing deposited be indivisible, in which case they 
 must agree among themselves. "Where the depositor has changed con- 
 dition, as if a woman marries, or a person of full age falls under inter- 
 diction, the deposit can be restored only to the person who has the 
 administration of the rights and property of the depositor. Where the 
 deposit has been made by a tutor, a husband, or by any other adminis- 
 trator, it can be restored, after the function of that administrator had 
 ceased, only to him whom he represented. When the contract specifies 
 a place where the deposit is to be restored, it must be delivered at that 
 place, but the expense of conveyance to the place of delivery must be 
 borne by the depositor. If the contract does not specify the place where 
 the deposit must be restored, it is to be restored at the place where such 
 deposit has been made ; and it must be restored as soon as it is de- 
 
 1 Jones on Bailm. 51; Brandon v. Scott, 40 Eng. L. & Eq. 105; Mitchell v. Williams^ 
 4 Hill N. T. 13; Jessop v. Miller, 1 Keyes, 321. 
 ^ May V. Harvey, 13 East. 1!j7. 
 
Deposits. 53 
 
 manded, even though the time for its restoration stipulated for has not 
 arrived. The depositary is not allowed to retain the goods deposited 
 on any pretence of a debt due him from the depositor, by way of offset, 
 but he may retain it for any advances made arising from the deposit.^ 
 
 § 58. Under the common law, if the bailee refuse to deliver goods on 
 demand made by the depositor, or does any act by which he acknowl- 
 edges to hold them for a third person, he is responsible for a conversion 
 of the property, and after having done so, the agent placing his refusal 
 upon the absence of his principal, the bailee cannot claim to hold on 
 the ground of lien for storages and charges paid. So, if he receive 
 them for a particular purpose and transfer them in contravention of 
 that purpose, even though it be to a bona fide purchaser, without 
 notice, the latter cannot resist the claim of the owner. ^ So closely is 
 the depositary held to the execution of the terms of his contract, that 
 it has been asserted that where goods are delivered to a bailee, to be 
 delivered over to another, and afterwards an action is brought by a 
 person having a right to the goods, the defendant may, pending the 
 action, deliver over the property to the person to whom it was delivered, 
 and thereby discharge himself.' But the bailor, in cases of naked 
 bailment, has the right to countermand his bailment ; and after that, 
 the delivery by the bailee will not be good. The right of countermand 
 arises out of the gratuitous nature of the contract.* Where the bailee 
 has delivered the goods to a second bailee, he has the right to demand 
 and recover them ; and the original bailor has the same right of re- 
 covery from either bailee, because he has the property, and both are 
 bound to answer him.^ And it was formerly held, that where the 
 second bailee delivers the goods to the original bailor, it would be no 
 bar to a suit by the first bailee against him. But this doctrine is now 
 entirely exploded by later authorities.^ 
 
 § 59. After a legal demand has been made by the bailor, the bailee 
 must answer for any loss or casualty that may happen to the goods ; 
 unless, perhaps, in cases where it may be strongly presumed that the 
 
 1 Code of Louisiana, Art. 2920 to 2927. As to the obligations of a depositary under 
 the California statutes, see Cal. Civil Code, §§ 1822-1827. A naked bailee cannot be 
 held liable for a delivery to the wrong person where the agent of the person entitled 
 to the property has given him to understand that it was for the one to whom it was 
 delivered. Brant v. McMahon, 56 Mich. 498. 
 
 2 Holbrook v. Wight, 24 Wend. 169; Wilkinson v. King, 2 Camp. N. P. C. 335; 2 
 Stark. N. P. C. 311; Medlin v. Wilkerson, 81 Ala. 147; Gottlieb v. Hartman, 3 Col. 53. 
 
 ' Bac. Abr. Bailm. D. 
 
 * Winkley v. Foye, 33 N. H. 171. 
 
 6 Isaac V. Clark, 2 Bulst. 306, 312. 
 
 « Agle V. Atkinson, 5 Taunt. 759; Whittier v. Smith, 11 Mass. E. 211. 
 
54 Law of Bailments. 
 
 same accident would have befallen the thing bailed, even if it had been 
 restored at the proper time. At common law, the general rule is that 
 a refusal to deUver on demand, or at the time or place stipulated, will 
 be received as evidence of a conversion of the property, which will 
 render the bailee liable for its value.^ "Whatever acts amount to a con- 
 version of the property, or a denial of the bailor's rights over it, will 
 render the bailee from that time absolutely responsible for it, and cast 
 upon him all the risks that may afterwards attend the property.^ Of 
 course a sale or misuse of the goods bailed will render the bailee liable 
 for them ; by selling them he makes himself guilty of a breach of faith, 
 which renders him liable for their full value ; by any misuse of the 
 goods, equivalent to a denial of the owner or depositor's rights m them, 
 the bailee makes himself responsible for the property. 
 
 § 60. A conversion of the goods by the depositary instantly confers 
 upon the owner or depositor a right of action to recover the value of 
 the property ; and this right of action is not impaired by the subse- 
 quent loss or injury of the goods. The law will not allow the baUee to 
 escape from his liability for the wrongful conversion of the property, 
 on the ground of misfortune in his subsequent dealings with it. As a 
 wrong-doer he must bear the consequences of his tortious act from its 
 date,* and in some cases forward even to the day of trial.* Certainly 
 the rule of damages gives to the owner not less than the value of the 
 goods, with interest from the time of the conversion.^ 
 
 When the depositor does not know of the conversion until some time 
 afterward, and the value of the goods converted is uncertain or fluctu- 
 ating, it is not unreasonable to give him the value of his goods when he 
 calls for them ; nor can it be said that this rule operates inequitably 
 towards the wrong-doer ; because he received and held the goods under 
 a contract binding him to redeliver them on demand, and cannot reason- 
 ably claim a discharge from his contract on the ground of his own 
 previous tort. A man wrongfully takes and converts your timber into 
 boards or shingles; and being sued in trover for the manufactured 
 article, he cannot show the conversion of the timber in answer to your 
 demand for the boards or shingles ; he is not allowed to antedate or 
 carry back his wrongful act to relieve himself of its burden.' 
 
 1 Brown v. Cook, 9 John. E. 361; May v. Harvey, 1.3 East. 197. 
 
 2 Sargent t. Gile, 8 New Hamp. Rep. 325. 
 
 8 Collins V. Bennett, 46 N^. T. 490; Woodman v. Hubbard, 25 X. H. 67. 
 iRomaine v. Van Allen, 26 N. T. 309; Burt v. Dutclier, 34 N. Y. 493; MarkhamT. 
 Jaudon, 41 N. T. 237. See on rule of damages, Baker v. Drake, 53 N. Y. 211. 
 ^ Brizsee V. Jlaybee, 21 Wend. 144; Andrews v. Durant, 18 N. Y. 496. 
 " Brown v. Sax, 7 Cowen, 95; Baker v. Wlieeler, 8 Wend. 305; Curtis v. Groot, 6 
 
Deposits. 55 
 
 § 61. A restoration of the goods, after an act of conversion, does not 
 take from the owner his right of action; he may still maintain the 
 action of trover, and recover in it his actual damages.^ The wrong-doer 
 cannot annul the consequences of his wrongful act by an offer to re- 
 store the chattel, or by an actual return of the property.^ The owner 
 may stUl recover the damages he has sustained in consequence of being 
 deprived of the use of his property; or even special damages, the 
 direct and natural consequence of the wrongful act.'' Time lost and 
 labor spent in searching for the property taken or appropriated, may 
 be recovered in the form of damages.^ A decrease in the value of the 
 goods from the delay, may be also recovered.^ 
 
 § 62. It is the depositary's duty to restore the goods on demand, and 
 where he fails to do so he is bound to render some account of them ; 
 the omission to redeliver naturally calls upon him for some explanation. 
 The form of the action affects to some extent the burden of proof. In 
 the action of trover, an unexplained refusal to restore the goods is evi- 
 dence of a conversion — evidence from which the jury may find the fact 
 of a conversion f it is therefore suflB.cient to cast the burden of proof 
 upon the defendant ; and thus compel him to show a loss of the goods 
 without fault on his part.' In an action founded upon the bailee's con- 
 tract, the plaintiff must prove the contract and the breach or faUure to 
 redeUver ; the burden of proof is then cast upon the bailee to show due 
 diligence in the custody or keeping of the goods, or a loss of them not- 
 withstanding such diligence ; this is clearly the rule in actions brought 
 against a depositary for hire, and the reason of the rule applies with 
 equal force in actions against a bailee without hire.* When the property 
 
 John. R. 168; Babcock v. Gill, 10 John. 287; Rice v. HoUenback, 19 Barb. 664; Salis- 
 bury v. McCoon, 3 N. T. 379. See Guckenheimer v. Ajigevine, 81 N. T. 394,397; 
 Gavin v. Gleason, 105 IST. T. 256, 261; Newton v. Porter, 69 N. Y. 133, 136, 137; Fir- 
 min V. Firmin, 9 Hun, 571. 
 
 1 Reynolds v. Shuler, 5 Cowen, 323; Livermore v. Northrup, 44 N. Y. 107; Carpen- 
 ter V. Manhattan Life Ins. Co., 22 Hun, 47; Barrelett v. Bellyard, 71 111. 280. 
 
 2 Hanmer v. Wilsey, 17 Wend. 90, 93; Otis v. Jones, 21 Wend. 394. See ante, § 42; 
 Stephens v. Koonce, 103 N". C. 266. 
 
 8 Woodruff V. Cook, 25 Barb. 505; Bennett v. Lockwood, 20 Wend. 223. 
 
 * McDonald v. North, 47 Barb. 530; and see Clinton v. Townseud, 46 How. Pr. 42. 
 
 5 Rowley v. Gibbs, 14 John. 385; Suydam v. Jenkins, 3 Sand. 614. 
 
 « 2 Greenleaf s Ev. §§ 644, 645; Bradley v. Spofford, 3 Foster, N. H. 444. 
 
 ' 'Wellington v. Wentworth, 8 Met. 548; Collins v. Bennett, 46 N. Y. 490; Caldwell 
 T. Nat. Mohawk Valley Bank, 64 Barb. 333; Ouderkirk v. Central Nat. Bank, 119 
 N. Y. 263; Taussig v. Schields, 26 Mo. App. 318; Gleason v. Beers, 59 Vt. 581. See 
 Stewart v. Stone, 127 N. Y. 500, 506. 
 
 8 Arent v. Squire, 1 Daly, 347; Schwerin v. McKie, 5 Robertson, N. Y. S. C. 404, 
 419, and cases there cited; Goodfellow y. Meegan, 32 Missouri, 280; Ouderkirk v. 
 Central Nat. Bank, 119 N. Y. 263, 267; Hayes v. Kedzie, 11 Hun, 577. 
 
56 Law of Bailments. 
 
 is returned in a damaged condition, that is, injured in such a way or to 
 such an extent as does not ordinarily occur without culpable negligence, 
 it rests with the bailee to show how the injury occurred, and that he was 
 not guilty of the negligence that caused it.^ The rule here rests upon 
 two grounds : first, the facts relating to the uijury are peculiarly within 
 the knowledge of the bailee, and second the injury is of such a nature 
 that it does not usually occur without neghgence on the part of the 
 custodian.^ It follows that the burden of proof is not cast upon the 
 bailee where the injury is of such a nature that it might well occur in 
 the ordinary course of things, or where the loss appears to have arisen 
 under circumstances consistent with due diligence.^ 
 
 "When the trial commences, the burden of proving negligence rests 
 with the party alleging it as the ground of his action or defense ; the 
 amount of proof required to establish the fact, 7_)r/»ia/acie, depends very 
 much upon the circumstances attending the transaction.* 
 
 § 63. As against the true owner, the bailee holdmg property on deposit 
 gratuitously does not stand in any better condition than the bailor ; 
 since the true owner may follow and take the property in whose hands 
 soever it may be f omid.^ Against every other person, the general prin- 
 ciple is, that actual and lawful possession gives a right of action to the 
 person holding personal property, for its protection." It was formerly 
 considered that the plaintiff in such cases must show a special property 
 in the goods claimed, in order to maintain the action ;' but that doctrine 
 has been recently so far modified as to give the bailee, or person in pos- 
 session, a right of action against all persons who wrongfully interfere 
 with the goods. 
 
 § 64. Wherever the goods or chattels pass into the hands of the bailee 
 under a written contract, by the terms of which they are deliverable on 
 demand at a particular place, the bailor cannot recover them until they 
 have been properly demanded according to the contract ; neither can he 
 
 1 Collins V. Bennett, 46 N. T. 490, 494. In this case the horse in question was 
 foundered and rendered worthless while in the bailee's possession. McDaniels v. 
 Robertson, 26 Vt. 340; Arnot v. Branconier, 14 Mo. App. 401. 
 
 2 Cairnes v. Eobbins, 8 Mees. & Wels. 258; Rose v. Hill, 2 Man. Gr. & Scott, 787. 
 
 3 Piatt V. Hibbard, 7 Cow. 497; Watson v. Bauer, 4 Abb. Pr. N. S. 273. 
 
 * Lamb v. Camden & Amboy R. &. T. Co., 46 N. T. 271, 279; Russell Manul. Co. v. 
 New H. S. Co., 50 N. T. 121, 120. 
 
 5 Cook V. Holt, 48 N. T. 275; Calhoun v. Thompson, 56 Ala. 166. 
 
 6 Armory V. Delamirie, 1 Str. 504; Fisher v. Cobb, 6 Vermont R. (522; Sutton v. 
 Buck, 2 Taunt. R. 302; Miller v. Adsit, 16 Wend. 305; 5 Taunt. 579; White v. Webb, 
 15 Conn. E. 302. 
 
 ' Templanev. Case, 10 Mod. R. 25; 5 Mass. R. 304; Hoyt v. Gelston, 13 John. K. 
 151, and 14 do. 131. 
 
Deposits. 57 
 
 require their delivery at any other place than that specified. If no 
 place is specified for their delivery, they are deliverable at the place 
 of deposit, and the bailee cannot be required to produce them at any 
 other place, unless he has voluntarily stipulated to do so.^ As in other 
 cases, the contract regulates the place and mode of the delivery, and 
 the time or event on the occurrence of which it is to be made. 
 
 § 65. Right to Use. How far the bailee's right to use the goods or 
 chattels deposited with him goes, depends upon the circumstances of 
 the case. If the property is bailed with the evident intention that it 
 shall be used, its use will not impose upon the bailee any additional obUga- 
 tion.^ It is laid down as a general rule that the depositary has no right 
 to use the thing deposited, except in those cases where its use may be 
 necessary for the preservation of the deposit, or where the consent of 
 the depositor may be reasonably presumed. If he use the thing de- 
 posited, in cases where no such consent can be inferred, the bailee is 
 answerable for all casualties.' There are many instances in which this 
 consent to the use of the subject of bailment will be presumed. The civil 
 and common law agree that the depositary cannot make use of the 
 thing deposited, without the express or implied permission of the de- 
 positor.* The bailee, it should seem, may use moderately &• horse left 
 in his custody, may milk a cow left in his possession, or use the books 
 of a friend deposited in his library ; such use is not injurious to the 
 property, and is sometimes very useful for its preservation.^ If the 
 bailee derive profit or advantage from such use of the property deposited 
 with him, he is, at least under the civil law, answerable for the value of 
 such use ; the effect of such use must, therefore, under that law operate 
 to change the nature of the contract into a bailment for hire, thus en- 
 hancing the degree of care and diligence required of the bailee. 
 
 § 66. The naked depositary ought neither to be injured nor benefited 
 in any respect by the trust undertaken by him ; in an emergency, he 
 has an implied authority to incur expenses on behalf of the owner for 
 the preservation of the property; and where he is himself at some 
 
 1 Brown v. Cook, 9 John. E. 361 ; Phelps v. Bostwick, 22 Barb. 314. 
 
 2 De Fonoleaa: v. Shottenkirk, 3 John. E. ItO. 
 
 3 1 Cowen's Trea. 71, 3d ed.; Beach v. R. & Del. Bay Co. 37 IST. Y. 457; Collins v. 
 Bennett, 46 N. T. 490; Lane v. Cameron, 38 Wis. 603. The California Code provides 
 that a depositary may not use the thing deposited, or permit it to be used for any pur- 
 pose, without the consent of the depositor; and that a depositary is liable for any 
 damage happening to the thing deposited during his wrongful use thereof, unless 
 such damage must inevitably have happened though the property had not been thus 
 used. Cal. Civil Code, §§ 1835-1836. 
 
 ■• Code of Louisiana, Art. 2911 ; Bac. Abr. Bailm. D. ; 2 Kent's Comm. 568. 
 
 ^ Story on Bailm. § 89; Jones on Bailm. 81. 
 
58 Law op Bailments. 
 
 expense in keeping the property deposited with him, he may without 
 doubt make use of it ui a reasonable manner by way of compensation 
 for the charge.i Is his liability increased by reason of his making use 
 of the deposit, the use being less in value than the expenses incident to 
 its custody ? The bailment here is not wholly gratuitous, and yet on 
 the whole the bailee acquires no advantage from it ; he is but partially 
 paid for his services. It seems, however, that he is bound to the use of 
 ordinary care ; '"■ the related rules of law give strength to this impres- 
 sion.' 
 
 Where the thing deposited is of such a nature that it imposes no 
 charge upon the depositary in the keeping of it, as in the case of a de- 
 posit of jewels, no doubt can arise ; if the bailee wear them, he will be 
 Uable for their loss ; liable because he exposed them to the danger of 
 loss, and by so doing was guilty of an act of conversion. 
 
 § 67. A deposit of articles shut up in a box, or under a sealed cover, 
 should not be examined by the depositary, since he should not seek to 
 know what the depositor has concealed from him.^ If the things de- 
 posited be locked up in a box or chest, or enclosed in a wrapper under 
 seal, this circumstance would imply that they are not to be used ; books, 
 jewelry, pl»te or pictures deposited hi this manner should be retained 
 carefully in the condition in which they are received.'' So also if the 
 goods are of such a character as to be impaired by usage, they must not 
 be used ; since it cannot be presumed that the owner intended to place 
 them at the disposal of the depositary for his own advantage. The 
 presumption would be different with respect to such things as would 
 be very little if at all injured by use, as books left with a friend neither 
 boxed nor locked up, in the use of which even moderate care would pre- 
 vent them from being injured." Still the general doctrine seems to be 
 that the depositary, who uses the thing bailed with him, is responsible 
 if it be lost or injured while it is so used ; the use so far affects the con- 
 tract as to make it partake of the nature of a loan, and thus casts upon 
 the depositary the increased responsibility of the borrower, who must 
 answer for any accident which a very careful and vigilant man could 
 have avoided. If the use be without either the express or implied con- 
 sent of the depositor, the law is that the depositary is liable in any 
 
 iHarter v. Blanchard, 8 Albany Law Journal, 12, 13; 64 Barb. 617, opinion by 
 Smith, J. 
 
 2 Newhall v. Paige, 10 Gray (Mass.) 366. 
 
 " Smedes v. Utica Bank, 20 John. R. 372; 3 Cowen, 663; Bank of Utica v. McKins- 
 ter, 11 Wend. 473; Eobinson v. Smith, :j Paige, 222; 1 Edw. Ch. 513, 543. 
 
 * Code of Louisiana, Art. 2914; Cal. Civil Code, § 1835. 
 
 5 Story on Bailments, § 90. 
 
 « Jones on Bailment, 81 ; 2 Ld. Kaym. 917. 
 
Deposits. 59 
 
 event of loss or damage ; he becomes thereby guilty of such a violation 
 of his contract or trust that he must answer for any and every mis- 
 chance. Such authorized use of the goods for his own convenience, by 
 which they are exposed to the dangers of injury or loss, justly imposes 
 on the bailee the duty of answering for them in any event.^ 
 
 § 68. The person making a deposit must reimburse the depositary 
 the money he has advanced for the safe keeping of the thing, and in- 
 demnify him for all the deposit has cost him. He must also indemnify 
 the depositary for the losses which the thing deposited may have occa- 
 sioned him ; ^ this is the rule of the civil law, and it would seem to be 
 equally good at common law. Under the civil law such advances or 
 losses became a lien upon the chattels in deposit, but at common law 
 no lien attaches for such a demand ; " it is, it would appear, only a right 
 of action, though it would doubtless be more equitable to allow a lien 
 in such cases. If the baUee come into the possession of the property 
 by finding, and the owner offers a reward for the restoration of it to 
 him, the reward becomes a lien on the property.* 
 
 § 69. The bailee has no right to pledge goods deposited with him for 
 an advance of money ; that is a use of the property not authorized by 
 law, in direct violation of his contract. The owner in such a case may 
 follow and recover the property in whose hands soever if may be found. 
 The action of trover lies against the person in possession, who refuses 
 to deliver up the goods,* and thereby converts them to his own use. 
 The transfer to him being wrongful, he acquires no greater right over 
 the property than was possessed by the original bailee. Whatever 
 special property the bailee acquires in the goods, his right and control 
 over them are limited by the terms of the contract under which he has 
 them in custody. He has, it would seem, only a possessory interest in 
 them,' and, strictly speaking, no right of property. The law gives him 
 an interest sufficient to carry out and accomplish the purposes of the 
 contract,'' which extends to the defense of the property by action against 
 any and all persons who may interfere with it, but does not include the 
 right to bestow it or make use of it in any way not evidently contem- 
 plated by the parties to the contract of bailment. 
 
 § 70. Goods in the possession of one who has only the custody of 
 
 1 3 Atk. K. 44. 
 
 " Code of Louisiana, Art. 2931 ; Jones on Bailm. 47. 
 
 8 Story on Bailm. § 121 ; Nicholson v. Chapman, 2 H. Black. R. 254; Amory v. Myn, 
 10 John. 103; Harter v. Blanchard, 64 Barb. 617. 
 * Wentworth v. Day, 3 Mete. K. 325. 
 
 ' Hartop V. Hoare. 3 Atk. E. 44; Waterman v. Robinson, 5 Mass. R. 303. 
 6 Commonwealth v. Morse, 14 Mass. E. 217. 
 ' Giles V. Grover, 6 Bligh E. 277; Story on Bailment, § 93. 
 
60 Law of Bailments. 
 
 them for the time being, as where they are in the keeping of the owner's 
 servant, and he delivers them for safe keeping into tlie hands of a 
 depositary, must be redelivered to the owner on demand. Until a 
 demand is made or notice given, the depositary will be protected in the 
 act of restoring the goods to the person from whom he received them ; 
 this at least is the principle of the civil law, under which the bailee, if 
 he discover that the goods were stolen, or who the true owner of them 
 is, must give notice to him of the deposit, requiring him to make his 
 claim in due time.^ If this is not done, he is at liberty to restore the 
 goods to the bailor. At common law the owner of stolen property may 
 follow it and retake it in whose hands soever it may be found.^ Though 
 possession of personal property is prima facie evidence of title, it may 
 be overcome by positive testimony ; and since on every sale of personal 
 chattels there is an implied warranty of the title to them, the remedy 
 of the mnocent purchaser of stolen property is by an action against the 
 vendor. The title of the owner cannot be divested by the action of 
 third persons without his concurrence or such neglect on his part as 
 induces the purchaser to part with value for the same. An exception to 
 this general rule exists in England, in respect to sales made in market 
 overt ; but the exception is not recognized in this State.^ 
 
 Even an auctioneer who sells stolen goods is liable to the owner in an 
 action of trover, notwithstanding the goods are sold and the proceeds 
 paid over to the thief without notice of the felony.'' The exception in 
 England, just mentioned, founded on a custom which prevailed princi- 
 pally in the city of London, has always been regarded and restricted by 
 the courts, with unusual jealousy and vigilance.'* In the origin of the 
 custom, sales in fairs or markets overt were regulated with great strict- 
 ness, so as to give to them the utmost publicity and surround them with 
 every circumstance of openness and fair dealing." As we have in this 
 State no such market, sales here have no other effect than mere private 
 sales in England.' 
 
 § 71. The rule is different where property has been acquired by a 
 
 1 Code of Louisiana, Art. 2921; Cal. Civil Code § 1826. 
 
 2 Cowen's Trea. 3d ed. ,329; Rogers v. Weir, 34 X. T. 463, 468; Newton v. Porter, 5 
 Lans. 416; Bassett v. Spofiord, 45 N. T. 387; Breokenridge v. McAfee, 54 Ind. 141; 
 Courtis V. Cane, 32 Vt. 232. 
 
 3 Hoffman v. Carow, 20 Wend. E. 21; S. C. 22 Wend. 285; Barnard v. Campbell, 55 
 N. T. 456, 462; Mowrey v. Walsh, 8 Cow. 238; Levi v. Booth, 58 Md. 305; Dame v. 
 Baldwin, 8 Mass. 518. 
 
 * Hoffman v. Carow, 20 Wend. E. 21. 
 
 ^ Wheelright v. Depeyster, 1 John. E. 480. 
 
 « 2 Black. Comm. 449, 450. 
 
 ' Mowrey v. Walsh, 8 Cowen E. 238. 
 
Deposits. 61 
 
 fraudulent purchase, which, though void as between the parties, confers 
 upon the vendee the possession of the property, and thereby enables him 
 to dispose of it to a bona fide purchaser for value. In this case the pur- 
 chaser in good faith holds by a title superior to that of the original 
 owner ; since the latter by parting with the possession has armed the 
 fraudulent vendee Avith the evidence of title, and thus enabled him to 
 appear as the owner in a sale of the property.^ He has made a delivery 
 with an intent to pass the title, and after that he is not permitted to 
 follow and retake the goods from the hands of an innocent purchaser, 
 or pledgee who has made advances upon them in good faith.^ 
 
 § 72. It is seldom that a depositary can defend himself from liability 
 by showing a delivery to a wrong party ; because, as a general fact, he 
 knows or has the means of ascertaining the true owner. Prima facie 
 therefore he is liable for a misdelivery, like a bailee for hire.' The 
 return of the goods to the owner is so essential in the discharge of his 
 obligation, that the law will not lightly excuse the bailee from its per- 
 formance ; but where the goods came into his possession through the 
 owner's neglect, and he does not know to whom they belong or by 
 whom they were left, it seems he discharges his duty by the exercise of 
 all reasonable care and vigilance in the delivery of them to a claimant 
 describing so as to identify the goods.* .As a gratuitous bailee he is not 
 liable for the goods where they are lost without gross negligence on his 
 part ; but while it may be possible for him to excuse a loss by a misde- 
 , livery, where he is not chargeable with want of due care, it is quite clear 
 that in the affirmative duty of redelivering the goods, he must act with 
 prudence and discretion.* 
 
 § 73. The law always aids the true owner to recover his property ; 
 and it is a general rule that the bailee cannot dispute the title of his 
 
 1 Andrew v. Dieterick, 14 Wend. E. 31; Paddon v. Taylor, 44 N. T. 371; Simpson 
 V. Del Hoyo, 94 X. T. 189; Winne v. McDonald, 39 N. Y. 233. 
 
 2 Andrew v. Dieterick, 14 Wend. R. 31; Mowery v. Walsh, 8 Cowen R. 238; Root 
 V. French, 13 Wend. R. 570. 
 
 8 Coffin V. Henshaw, 10 Ind. 277; James v. Greenwood, 20 La. Ann. R. 297; Nelson 
 V. King, 25 Texas, 655; Esmay v. Fanning, 9 Barb. 176; Brandon v. Scott, 40 Eng. 
 Law & Eq. 105; Colyar v. Taylor, 1 Cold well (Tenn.) 372. 
 
 * Morris v. Third Ave. R. Co., 1 Daly, 202. In this case the railroad company, tak- 
 ing up a satchel left in a car, was treated as a bailee for hire; and a verdict was ren- 
 dered against the company for the property on the ground of a want of due care, not- 
 withstanding the satchel had been honestly delivered to a claimant. Tabor v. Gard- 
 ner, 6 Abb. Pr. IST. S. 147. 
 
 ' Skelly V. Kahn, 17 111. 170. In this, a case of mandate, the bailee was not allowed 
 to excuse the loss of a sum of money by showing that he handed it to a boy for 
 delivery. A carrier cannot excuse a misdelivery, by showing an honest delivery on a 
 forged order. Powell v. Myers, 26 Wend. 591. 
 
62 Law of Bailments. 
 
 bailor. When therefore the bailee is applied to for the property by 
 a third party claiming title, his prudent course is to leave the claimant 
 to his action, and at once notify his bailor of the suit ; he is not obliged 
 to bear the burden of a litigation ; and it is not safe for him to surren- 
 der the property on demand.* For nothing will excuse a bailee from 
 the duty to restore the property to his bailor, except he show that 
 it was taken from him by due process of law, or by a person having the 
 paramount title, or that the title of his bailor has terminated.^ By sur- 
 rendering the property on demand to a third party, the bailee assumes 
 the burden of establishing the title he thus acknowledges. 
 
 1 Welles v. Thornton, 45 Barb. 390; Roberts v. Stuyvesant S. D. Co., 123 N. T. 57. 
 
 2 Bates T. Stanton, 1 Duer, 79; Van Winkle v. U. S. Mail S. Co., 37 Barb. 122; 
 Bliven V. Hudson II. R. Co., 36 N. Y. 403; 35 Barb. 191; Burton v. Wilkinson, 18 
 Verm. R. 186; Aubery v. Fiske, 36 X. Y. 47; McKay v. Draper, 27 N. Y. 256; Sinclair 
 V. Murphy, 14 Mich. 392; Osgood v. jSTichols, 5 Gray, 420; Stiles v. Davis, 1 Black, 101; 
 Pulliam V. Burlingame, 81 Mo. Ill ; Roberts v. Stuyvesant Safe Deposit Co., 123 K. T. 
 57. The bailee may always show an assignment of the title of the bailor to a third 
 person. Roberts v. J^oyes, 76 Me. 590. He may also show in justification of non- 
 delivery to the bailor that the true owner compelled a delivery to himself of the goods 
 bailed by legal process and that the bailor was immediately notified of the taking. 
 Bliven v. Hudson River R. R. Co., 36 N. Y. 403; The Idaho, 93 U. S. 575. Where 
 property in the custody of a bailee for hire is demanded by third persons imder color 
 of process, it becomes the duty of the bailee to ascertain whether the process is such 
 as requires him to surrender the property, and if it is not, then it is his right and duty 
 to refuse and to offer such resistance to the taking, and adopt such measures for re- 
 claimiag it, if taken, as a prudent and intelligent man would if it had been demanded 
 and taken under a claim of right to the property by another without legal process. 
 Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57. The mere levy of an execution 
 or attachment upon property by a creditor of the owner while in the possession of a 
 tort feasor is no defense in an action against the bailee. Id. And see Barnard v. 
 Kobbe, 54 N. Y. 516. 
 
Gkatuitous Commissions. 63 
 
 CHAPTER ITT. 
 
 GRATUITOUS COMMISSIONS OR MANDATES. 
 
 § 74. Nature of the Contract. The difEerence between a contract of 
 bailment by deposit without reward, and that species of contract known 
 as a mandate, is not very broad, and does not so much concern the 
 nature of the contract as the mode of its performance. A mandate is a 
 bailment of goods without reward, to be carried from place to place, or 
 to have some act performed about them. The leading case of Coggs v. 
 Bernard^ decides, that where a man undertakes to carry goods safely and 
 securely, he is responsible for any damage they may sustain in the car- 
 riage through his neglect, though he was not a common carrier and was 
 to have nothing for the carriage. An executory contract of this kind 
 cannot be enforced, since it wants a consideration to support it ; it is 
 an agreement to perform an act in the future, without any compensation 
 promised or received, and it cannot be enforced in an action. But 
 when the contractor actually enters upon the performance of the work 
 contracted to be done, he is bound to perform it in a careful and work- 
 manlike manner, and is responsible for neglect. A negligent perform- 
 ance of the imdertaking by which the property is injured creates a lia- 
 bility for the loss occasioned.^ The owner's trusting the bailee with the 
 goods is held a sufficient consideration to obUge him to a careful 
 management. 
 
 § 75. Subject of the Contract. The subject matter of the contract of 
 mandate, as in the contract of bailment by deposit, must be personal 
 property, the custody of which is, for the time being, given into the 
 hands of the mandatary.^ 
 
 In the civil law, the contract might arise in respect to real property, 
 as well as in cases where no property at all was concerned. What we 
 term an agency, or a contract to perform certain specific work, was 
 
 1 2Ld. Eaymd. 909-913; Jones on Bailm. 53; 2 Kent's Comm. 569. In the case of 
 a mandate, the labor and services are the principal objects of the parties, and the 
 thing is merely accessorial. 
 
 ^ Melbourne v. Louisville & N. R. Co., 88 Ala. 443. 
 
 ' Story on Bailm. §§ 144, 145. 
 
64 La^v of Bailments. 
 
 termed mandate in the civil law; and the contract included a great 
 variety of undertakings with respect to property, the custody of which 
 was not transferred. A gratuitous agency constituted the contract, as 
 to purchase a given piece of property, or to perform a particular piece 
 of work. The obligations involved were similar to those imposed by 
 our law under the same circumstances, but the classification is dif- 
 ferent. 
 
 § 76. The Code of Louisiana makes the contract of mandate to arise in 
 five different manners : for the interest of the person granting it alone ; 
 for the joint interest of both parties ; for the interest of a third person; 
 for the interest of such third persons and that of the party granting it ; 
 and finally for tlie interest of the mandatary and a third person. It is 
 in form and effect a commission given by the mandator to another to 
 transact for him, and in his name, one or several affairs. The object 
 of the mandate must be lawful, and such as the mandator has the right 
 to accomplish, and the contract is completed only by the acceptance of 
 the mandatary.^ Unless a compensation is agreed upon, the services 
 are presumed to have been rendered gratuitously. In fact, the services 
 are generally compensated under the Code of Louisiana, as is manifest 
 from the great variety and matters of agency comprehended under this 
 contract. In general, whatever may be committed to another by a 
 procuration or power of attorney, is there embraced under the contract 
 of mandate, sometimes in general terms to include all affairs, and again 
 limited to one affair alone. 
 
 In respect to the performance of this contract, the mandatary is un- 
 der that code responsible not only for unfaithfulness in his management, 
 but also for his fault or neglect. But his responsibility with respect to 
 faults is enforced less rigorously against the mandatary acting gratui- 
 tously, than against him who receives a reward.^ 
 
 A broker is by the same law classed as a mandatary, who is employed 
 to negotiate a matter between two parties, and is for that reason regard- 
 ed as the mandatary of both,^ to whom he owes the same fidelity. His 
 obligations and duties do not seem to differ very greatly from those im- 
 posed upon brokers and auctioneers under the common law.^ 
 
 The compass of this contract under the civil law, it is evident from 
 what has been said, embraces a much wider range of subjects and rela- 
 tions than are uicident to the contract of mandate at common law. We 
 have appropriated from that code only a single class of principles, appli- 
 
 1 Code of Louisana, Art. 2954, 2955, 6, 7. 
 
 2 Idem, -Jirrl. 
 ^ Idem, i:!l,S5. 
 
 •* Co \- tf Louisiana, Art. 2986, 7, 8. 
 
GEATTTITOtrS COMMISSIONS. 65 
 
 cable to duties in respect to which, our law was silent. We borrowed 
 only such as we had need of, making them ours from time to time as an 
 occasion arose, in the same manner as we have incorporated much of 
 the civil law into our equity jurisprudence. 
 
 § 77. Feasance and Non-feasance. The main distinction between a 
 mandate and a deposit is that the former lies in feasance, and the latter 
 simply in custody. The duties of the depositary are not so active as 
 those of 'the mandatary ; they do not require so much vigilance. A 
 mandatary, like an unpaid agent, engages to use a degree of -diligence 
 and attention adequate to the performance of his undertaking; and 
 though not bound by his original promise to enter upon the execution of 
 the commission, he is bound, after having actually entered upon the 
 business, to exert himself in proportion to the exigency of the matter in 
 hand. This rule has been enforced where an agent without reward 
 undertook to obtain an insurance on a vessel, and did the business so 
 carelessly that the benefits derivable from the policy were lost.^ 
 
 In our law the contract ^f mandate is connected with a bailment or 
 delivery of property : it was not so limited in the civil law.^ And there 
 is a class of cases in which, without any delivery of goods or property, 
 an unpaid agent is held responsible for the use of diligence in the busi- 
 ness he undertakes ; as where a man receives a demand to collect gratis, 
 or where a surgeon undertakes an operation without hire. The effort 
 to collect must be made with ordinary diligence ; ' and the operation 
 must be performed with ordinary skill.* The existence of a valid con- 
 tract between the parties, founded on a consideration, is not essential 
 to support an action for the misfeasance.^ 
 
 1 Mallougli V. Barber, 4 Campb. 150; Park v. Hammond, 4 Campb. 344. A right to 
 commissions for tlie service may affect the question. Nellis v. De Forest, 16 Barb. 61. 
 See the opinion by WoodWOEth, J., 20 John. R. 378; and Coggs v. Bernard, 2 Lord 
 Raym. 910. 
 
 2 Hadley's Introduction to Civil Law, 207, 232. 
 ^ Moore v. Gholson, 34 Miss. 5 George, 372. 
 
 * Carpenter v. Blake, 60 Barb. 488; S. C. 50 K. T. 696; 10 Hun, 358; 75 ]Sr. T. 12; 
 McKevins V. Lowe, 40111. 209; Craig v. Chambers, 17 Ohio St. 253; Haire v. Keese, 
 7 Phil. Pa. 138; Howard v. Grover, 28 Maine, 97. 
 
 5 Pippin V. Shepard, 11 Price, 400; Gladwell v. Steggall, 5 Bing, N". C. 733; 6 Exch. 
 767. The employment or retainer need not have been by the plaintiff. Peck v. 
 Martin, 17 Ind. 115. The same degree of care and skill is required of a surgeon 
 whether he serves gratuitously or for compensation. Becker v. Janinski, 27 Abb. 
 N. C. 45; Harris v. "Woman's Hospital, 27 Abb. N. C. 37. One who offers himself for 
 employment in a professional capacity undertakes that he possesses that reasonable 
 degree of learning and science which is ordinarily possessed by the professors of the 
 same art or science, and which is ordinarily regarded by the community and those con- 
 versant with the employment as necessary to qualify him to engage in such business; 
 
 5 
 
66 Law op Batlmbnts. 
 
 The distinction taken at an early day between >(on-feasance andww- 
 feasance by a mandatary, is founded in the principle that though a per- 
 son cannot be compelled to enter gratuitously upon the business of 
 another, yet when he once takes it upon himself by beginning the 
 work, he becomes responsible for any damages that may arise through 
 his negligence or want of care. A non-feasance is a failure to perform ; 
 and a misfeasance is the performance in an improper manner of some 
 act which it was his duty, by contract or otherwise, to have done, or of 
 some act which he had a right to do. 
 
 The common law does not enforce a mere naked promise. Hence a 
 mandatary, or one who undertakes to do an act for another without re- 
 ward, is not answerable for omitting to do the act, and is only liable 
 when he attempts to do it and does it amiss. In other words, he is 
 responsible for a misfeasance, but is not answerable for a non-feasance, 
 even where special damages are averred. This rule was applied where 
 one of two joint owners of a ship voluntarily undertook to get the ves- 
 sel insured, but neglected to do so, and the ship was lost. He was not 
 held liable, because he had not come under a legal obligation.' Receiv- 
 ing property into his hands, under a j)romise to do some act in relation 
 
 that he will use reasonable and ordinary care and diligence in the exercise of his skill 
 and the application of his knowledge to accomplish the purpose for which he is 
 employed ; and to use his best judgment in the exertion of his skill and the application 
 of his diligence. Carpenter v. Blake, 10 Hun, 358; S. C. 75 N. T. 12. A surgeon is 
 not liable for a want of the highest degree of skill in the performance of an operation ; 
 but only for the want of ordinary skill, and for the want of ordinary care and judg- 
 ment : held in respect to an alleged error in not removing more of a diseased thigh 
 bone. Howard v. Grover, 28 Maine, 'J7. The law allows the practice of any system 
 of medicine ; /. e. , it does not prohibit the practice of any ; but it does imply an under- 
 taking on the part of every medical practitioner that he will use an ordinary degree of 
 care and skill in his practice, according to his avowed system. Bowman v. Woods, 
 1 Greene, Iowa, 441; Commonwealth v. Thompson, 6 Mass. 1.34; White v. Carroll, 42 
 N. Y. 161; Haire v. Eeese, 7 Phil. Pa. l;jS; McNevins v. Lowe, 40 111. 209. The 
 burden of proof in a suit for malpractice is on the plaintiff. Craig t. Chambers, 17 
 Ohio St . 258. In England and in some of the States, the law requires that medical 
 practitioners shall be licensed; and allows only a licensed physician to recover for 
 medical services. Biblin v. Simpson, 59 Maine, 181; Wragg v. Strickland, 36 Ga. 559; 
 De La Rosa v. Prieto, 16 Com. B. (N. S.) 578. The same rule formerly existed in 
 this State. Bailey v. Jlogg, 4 Denio, (10. It was for a time abrogated and subsequently 
 revived. See Laws of 1880, Chap. 513; Fox v. Dixon, 34 State Eep'r 710. At pres- 
 ent our law recognizes no particular school of medicine as the legal or authorized 
 system. White v. Carroll, 42 N. T. 161. A man who does not profess to be a 
 physician nor to practice as such, and is merely asked his advice as a friend or 
 neighbor, does not incur any professional responsibility. Eitchey v. West, 23 1)1. "<>, 
 cited in 40 111. 210. 
 1 Thorne v. Deas, 4 John. E. 84. Leading case; opinion by Ch. J. KExr. 
 
Geattjitous Commissions. 67 
 
 to it, creates a legal duty. Thus, a bank by receiving a note for collec- 
 tion, where it is to receive no direct compensation for the service, be- 
 comes bound to a faithful and diligent performance of the undertaking.^ 
 Under the common law the engagement is not considered a gratuitous 
 undertaking, because of the average deposits accruing to the bank on 
 account of such collections. Under the civil law it is treated as a bail- 
 ment without reward, and the mandatary is held bound by the same 
 obligation. The duty of the mandatary, though not placed on the 
 same ground, is enforced with equal strictness under both systems.^ 
 
 § 78. Mule of Diligence. A mandatary is answerable for the same 
 degree of diligence as a depositary ; he must use such care as men of 
 common sense and common prudence, however inattentive, ordinarily 
 take of their own affairs, of a like kind ; that slight or moderate degree 
 of care which men naturally take of their own goods. He is not liable 
 for a loss or injury, unless it happens through his gross negligence 
 or bad faith. Like many other principles of law, this rule must be 
 understood with reference to the article, the nature of the trust, and 
 the circumstances attending its execution.'' 
 
 § 79. The supposed case of the diamond ring illustrates the principle 
 which fixes the degree of care demanded of the mandatary ; for instance, 
 if Stephen desire Philip to carry a diamond ring from Bristol to a person 
 in London, and he put it with bank notes of his own into a letter case, 
 out of which it is stolen at an mn, or seized by a robber on the road, 
 Philip shall not be answerable for it ; although a very careful, or per- 
 haps a commonly prudent man would have kept it in his purse at the 
 inn, and have concealed it somewhere in the carriage ; but if he were to 
 secrete his own notes with peculiar vigilance, and either leave the dia- 
 mond in an open room, or wear it on his finger in the chase, he would be 
 bound, in case of a loss by stealth or robbery, to restore the value of it 
 to Stephen.^ In general, the fact that the party did the work on the 
 subject of the bailment with the same care that he- did the work on like 
 goods of his own, will repel the imputation of negligence.^ This pre- 
 sumption may, without doubt, be overcome by proof of actual neghgence, 
 
 1 Smedes v. Utica Bank, 20 John. 372; S. C. 3 Cowen, 662. See Edwards on Bills 
 and Notes, 402, 460, 475; Ainsworth v. Backus, 5 Hun, 414, 416. 
 
 2 Durnford v. Patterson, 7 Martin, 460, 464. 
 
 3 McNabb v. Lockhart, 18 Ga. 495; Jenkins v. Mathews, 1 Sneed, Tenn. 248; Car- 
 riugton V. Ficklin, 32 Gratt, 670; Dunn t. Brunner, 13 La. Ann. E. 452; Tompkins 
 V. Saltmarsh, 14 Serg. & Bawls. 275; Tracy v. Wood, 3 Mason, 132. One who collects 
 rents for another gratuitously is liable only for gross negligence in the care of the 
 money collected. Bronnenburg v. Charman, 80 Ind. 475. 
 
 * Jones on BaUm. 63; Spooner v. Mattoon, 40 Vt. 300. 
 
 * Lane v. Cotton, 1 Ld. Eaym. 646; Kettle v. Bromsale, Willes' E. 121. 
 
68 Law of Bailments. 
 
 or of conduct which, though applied tc:> his own goods, would be deemed 
 negligent in a bailee without hii-e, of ordinary prudence.^ Negligence is 
 a fact to be found from the evidence. 
 
 § 80. How far the mandatary may be rendered liable for the want of 
 proper care, even where he shows the same neglect of his own goods, is 
 very well shown in the action of Tracy v. Wood.^ A undertook gratui- 
 tously to carry two parcels of doubloons for B, from Xew York to Bos- 
 ton, in a steamboat, by the way of Providence. A in the evening (the 
 boat being to sail early in the morning,) put both bags of doubloons, 
 one being within the other, into his valise with money of his own, and 
 carried it on board of the steamboat and put it into a berth in an open 
 cabin, although notice was given to him by the steward that they would 
 be safer in the bar-room of the boat. A went away in the evening, and 
 returned late, and slept in another cabin, leaving his valise where he 
 had put it. The next morning, just as the boat was leaving the wharf, 
 he discovered, on opening his valise, that one bag was gone, and he gave 
 an immediate alarm and ran from the cabin, leaving the valise open 
 there with the remaining bag, his intention being to stop the boat. He 
 was absent for a minute or two only, and, on his return, the other bag 
 also was missing. An action being brought against him by the bailor 
 for the loss of both bags, the question was left to the jury whether there 
 was not gross negligence, although the bailee's own money was in the 
 same valise. The jury were directed to consider whether the party 
 used such diligence as a gratuitous bailee ought to use under such cir- 
 cumstances, and they found a verdict for the plaintiff for the first bag 
 lost, and for the bailee for the second. 
 
 Here is another illustration of the same rule, that the bailee may be 
 liable where he keeps the property as he does his own. The defendant, 
 a coffee-house keeper, havmg the custody of money without reward, lost 
 it, and gave this account of it : that he had put it, with a large smn'of 
 money of his own, into his cash box, which was kept in his tap-room ; 
 
 1 Eootli V. Wilson, 1 B. and Aid. 59. That the bailee has dealt with his property 
 and the bailor's iu the same way is a fact which always may be shown as an element 
 in adjusting the standard of duty and deciding the question of its performance, as well 
 as a test of the bailee' s good faith. On the proof of such a fact a presumption of ade- 
 quale diligence would ordinarily arise. Bnt the question of the bailee's responsi- 
 bility must be finally settled by a resort to the settled principle which deduces the 
 measure of his duty in each particular bailment from a comparison of liis conduct with 
 the conduct of classes of men and not of individuals. The bailee is not shielded from 
 liability for neglect of ordinary care by showing tliat he lias been careless, inattentive 
 and reckless in the management of his goods as well as those of the bailor. First Xat. 
 Bank of Carlisle v. Graham, 19 Pa. St. 106. 
 
 2 3 Mason R. 132; Conway Bank v. Amer. Ex. Co., 8 Allen, 512. 
 
Geatuitous Commissions. 69 
 
 that the tap-room had a bar in it and was kept open on a Sunday, the 
 rest of his house not being kept open on that day ; and that the cash box, 
 with his own and the plaintiff's money, had been stolen on that day. 
 The judge left it to the jury to say whether the defendant was guilty of 
 gross neglect ; and told them that the loss of the defendant's own money 
 did not necessarily prove reasonable care. The charge of the judge was 
 afterwards held good, and it was decided, first, that the question of 
 gross negligence was properly left to the jury ; and second, that there 
 was evidence on which they might find for the plaintiff.^ 
 
 § 81. The degree of care requii-ed of the mandatary is materially 
 affected by the circumstances attending the execution of the contract, 
 such as the kind and value of the goods baUed and their liability to in- 
 jury. Lord Stowell puts this case in point : " If I send a servant with 
 money to a banker and he carries it with proper care, he would not be 
 answerable for the loss, though his pocket were picked by the way. 
 But if, instead of carrying it in a proper manner and with ordinary 
 caution, he should carry it openly in his hand, thereby exposing valuable 
 property so as to invite the snatch of any person he might meet in the 
 crowded population of a large town, he would be liable ; because he 
 would be guilty of negligentia malitiosa, in doing that from which the 
 law must infer that he intended the event which has actually taken 
 place." ^ 
 
 1 Doorman v. Jenkins, 2 Adolph. and Ellis, 256. See Smitli v. First National Bank 
 of Westfield, 99 Mass. 605; Lancaster Bank v. Smith, 62 Pa. St. 47; Maury v. Coyle, 
 34 Md. 2.35, 247; Erie Bank v. Smith, 3 Brews. 9. 
 
 ^ Eendsberg, 6 Bob. Ad. 141, 155. So, also, the captain of a vessel who carries the 
 ^oods of another, though not for hire, is bound to take prudent care of them; and 
 where he intermeddles with the chest of a seaman, who has been casually left behind, 
 he is bound to restore it to its former state of security, particularly if the contents be 
 valuable. Thus in Nelson v. Macintosh, 1 Starkie N. P. 188, an action of case for so 
 negligently carrying plaintiff's box, containing doubloons, dollars and other valuables, 
 that the box and Its contents were lost ; plaintiff came on board the Arundel, of which 
 the defendant was captain, at Trinidad, with the intent to work his passage home, but 
 being casually on shore when the signal was given for sailing, was left behind. Plaint- 
 iff's box was stowed with others on the quarter deck, and soon after departure, was 
 opened by the defendant, upon a suggestion that it might contain contraband goods. 
 The box was fastened with a lock, and the lid was also nailed down ; having ascertained 
 the contents, the lid was replaced and nailed down again. Toward the termination of 
 the voyage, the captain again opened the box in the presence of the passengers, and 
 placed the contents in a canvas bag, which he deposited in his own chest in the cabin, 
 where he usually kept his own valuables. On arrival at Gravesend, a river pilot was 
 taken on board, and the captain and one mate left the vessel, another mate remaining 
 onboard; an excise officer was also on board, and two yoimg men belonging to the 
 vessel who slept in the cabin. On the next morning the captain's trunk containing 
 the valuables was missing, and not afterwards found. The defendant introduced evi- 
 
70 Law oy Bailmekts. 
 
 § 82. A gratuitous bailee of money or small packag-es of great value 
 must take the common care of them usually bestowed upon such arti- 
 cles ; he must use a degree of diligence and attention adequate to the 
 performance of the trust ; such ordinary care as the circumstances 
 naturally call for.^ 
 
 Being a gratuitous bailee, a volunteer in the service of another, he 
 does not guarantee the safe transmission of the money, without an ex- 
 press stipulation to that effect. His engagement is to use the necessary 
 care and diligence in the discharge of his trust ; namely, such care in 
 its transportation and delivery, as persons of common prudence in his 
 situation usually bestow in the custody and keeping of similar prop- 
 erty belonging to themselves.^ He makes the business his own, and 
 engages to employ upon it the same care, attention, and diligence which 
 he would use were the business actually his own : the contract implied 
 by law can hardly be more comprehensive. 
 
 § 83. "Where the owner of his own free will confides his property to 
 the custody of another, he knows or may fairly be presumed to be ac- 
 quainted with his character ; and in such a case it is not unreasonable 
 to assume that the owner assents that the bailee shall keep or carry the 
 
 dence tending to show tliat the property had been stolen by persons unooruiected with 
 the vessel. But Lord EUenborougli, before whom the action was tried, charged the 
 jury that in a case like this, though a person does not carry for hire, he is bound to 
 take proper and prudent care of that which is committed to him, and he left it to the 
 jury to consider — 1st. Whether the captain had not, under the circumstances, by the 
 intermeddling and removal, imposed on himself the duty of carefully guarding against 
 all perils to which the property was exposed in consequence of the alteration. 2(1. 
 Whether he had in fact carefully guarded the property ; and that if they were of the 
 opinion that the conduct of the defendant had imposed upon him the duty of carefully 
 guarding the goods, and that he had been guilty of negligence, they were to find for 
 the plaintiff ; and the jury rendered a verdict for the plaintiff. It is evident from the 
 above , as well as other cases, that the rule of liability is relaxed or rendered strin- 
 gent so as to meet the circumstances of each particular case. The principle, indeed, 
 remains the same in all cases, but its application is left mainly to the jury, who find 
 from the circumstances whether there has been a loss through negligence. The mere 
 mandatary, it is to be observed, is liable only for gross negligence ; this is the general 
 principle. Stanton v. Bell, 2 Hawks, 145; Lodowski v. ]UcFarland, 3 Dana, 205; Tracy 
 V. Wood, 3 Mason, 132. Gross negligence is the omission of that care which bailees 
 ■without hire, or other mandataries, of common prudence, are accustomed to take of . 
 property of the like kind. Articles of great value, such as may be easily injiu'ed, de- 
 mand a greater degree of care than those of less value. Money, jewelry, and pictures 
 are of this description. Graves v. Ticknor, 6 N". H. 537. 
 
 ^ Jenkins v. Mathew, 1 Sneed, 248 ; McNabb v. Lockhart, 18 Georgia, 495 ; Graves 
 V. Ticknor, 6 N. H. 537. 
 
 2 Eddy V. Livingston, 35 Mo. 487; Colyar v. Taylor, 1 Cold. Tenn. 372; The Stato v. 
 Meagher, 44 Mo. 363; .Jourdan v. Reed, 1 Clarke (Iowa). 135. 
 
Geattjitous Commissions. 71 
 
 same with the care which he usually takes of his own property.^ For 
 the same reason, the owner's assent that the business shall be trans- 
 acted according to an established usage may be presumed.^ But mere 
 knowledge by the bailor of the mode in which the bailee receives and 
 takes care of property intrusted to him, will not as a matter of law 
 absolve him from liability for a want of due care : unless the circum- 
 stances be such as to establish an agreement as to the nature and 
 degree of care to be used by the bailee.'' 
 
 § 84. A mandatary holds the property under a special trust, and is 
 held to a strict fidelity in the execution of the trust ; he must perform 
 his engagement with perfect fairness and strict integrity. Xo reason 
 can be suggested why he should not be held to the same rules of ac- 
 countability as an ordinary trustee of personal property : ■* and to the 
 same rules which enforce the duties of an agent to his principal.^ 
 Neither an agent nor a trustee is permitted to have or to acquire in 
 ^he business committed to him, any interest adverse to that of the 
 party for whom he acts.' The relation in which he stands precludes 
 him from any surreptitious dealing on his own account, at the expense 
 of the principal or party on whose behalf he is acting. 
 
 Factors, agents, and brokers acting as such, and having the custody 
 of money or property belonging to a principal, act m a fiduciary capac- 
 ity ; and are for that reason held to a strict liability.' So an attorney 
 collecting money for his client, or an agent receiving money to invest 
 or to appropriate in a special manner, holds it in a like fiduciary capac- 
 ity ; " and his duty to follow his instructions, or to account for the 
 fimd, is not much affected by the circumstance that he is or is not to 
 be paid for his services. The remedy given against him by arrest is 
 placed upon the ground of a violated trust.' 
 
 1 The William, 6 Rob. Ad. R. 316. 
 
 2 Gibson v. Culver, 17 Wend. 305; Van Santvoord v. St. John, 6 Hill, 15Y. 
 
 ' Conway Bank v. Amer. Ex. Co., 8 Allen, 512; ante, § 50. See Eastman v. Patter- 
 son, .38 Vt. 146. 
 
 \* Taylor v. Fire Department of N". T. 1 Edw. Ch. 294, 299; Chapin v. Weed, Clarke's 
 Ch. R. 464. 
 
 s Reed v. Warner, 5 Paige's Ch. R. 650, 656. 
 
 " Conkey v. Bond, 36 IST. T. 427; Morrison v. O. & L. C. R. R. Co., 52 Barb. 173. 
 
 ' Duguid V. Edwards, 50 Barb. 288. 
 
 8 Gross V. Graves, 2 Robt. 707; White v. Piatt, 5 Denio, 269. 
 
 9 Schieder v. Shiells, 17 How. Pr. 420. See Dodge v. Tileston, 12 Pick. 328. The 
 engagement of the mandatary partakes of the nature of a trust, in the execution of 
 which a strict fidelity is required of him; as much as this is implied in a remark quoted 
 from one of Cicero's speeches, that the ancient Romans considered a mandatary as 
 infamous if he broke his engagement, not only by actual fraud, but even by more 
 than ordinary negligence. Jones on Bailm. 63. The confidence reposed in him was 
 
72 Law of Bailments. 
 
 § 85. A loan of animals to be used for their keep, creates a Iniilment 
 for hire ; and subjects the bailee to the rules applicable to that class of 
 bailees.! So the delivery of a chattel on trial, pending a negotiation 
 for a sale, to be kept at a price named or returned, creates a bailmeat 
 mutually beneficial to the parties ; the bailee is not liable for a loss or 
 injury to property, where he has taken due^or reasonable care of it.^ 
 So the delivery of goods to a party for use under a contract that they 
 shall become his on his paying a certain sum, is to be treated as a bail- 
 ment rather than a conditional sale ; ^ but there is certainly an element 
 in the contract not found in a simple bailment ; so that an action by 
 the bailee against a trespasser for taking the property before the day 
 fixed for payment, will not bar a second action by the vendor to recover 
 its value.* 
 
 There is a clear distinction between the case of a delivery of a chat- 
 tel on a condition that the party receiving it shall try it and keep it 
 at a price named or return it within a given time in case he does not 
 like it, and a present sale of a chattel giving the buyer the privilege of 
 
 evidently regarded as creating an obligation wliicli could not be violated without dis- 
 honor, without incurring the infamy attaching to the betrayal of a trust. But this is 
 rather a statement of the obligation, as it is felt by an honorable and faithful man, 
 than a strictly accurate definition of the legal duty; for the law does not, as we have 
 seen, hold the mandatary, without reward, to so strict a rule of responsibility as it im- 
 poses upon the bailee for hire. It prefers rather to base the obligation of the contract 
 upon a consideration of benefit, or of actual trust, coupled with the custody of property; 
 but in some instances, a moral obligation arising out of a pre-existing and valuable 
 consideration is regarded as sufficient to support an express promise or undertaking, 
 such as a debt barred by the statute of limitations. Cook v. Bradley, 7 Conn. K. .57. 
 Where a legal obligation has once existed, it may be made the basis of a future under- 
 taking valid in law. A mere moral obligation, which does not arise out of a, pre- 
 existing legal duty, will not support a promise. 
 
 1 Chamberlain v. Cobb, 32 Iowa, 161; Maxwell v. Henston, 67 N. C. 305. 
 
 2 Hunt V. Wyman, 100 Mass. 198; De Fonclear v. Shottenkirk, 3 John. R. 170; 
 Nichols V. Eoland, 11 Martin, 192; Colton v. Wise, 7 111. App. 395; Foreman v. 
 Drake, 98 K. C. 311 ; A. D. Puffer & Sons Manuf. Co. v. Baker, 104 N". C. 148. 
 
 'Becker v. Smith, 59 Pa. St. 469. In Pennsylvania a sale and delivery with an 
 agreement that the title shall remain in the vendor until the price is paid, is regarded 
 as fraudulent, and is held void as against the creditors of the vendee. Heppe v. 
 Speakman, 7 Phila. K. 117; Martin v. Mathias, 14 S. & E. 214. It is not regarded as 
 fraudulent where the property is and is to be employed in the service of the vendor 
 until paid for. Lehigh Co. v. Field, 8 W. & S. 2:a; Sterling & Son v. Goodrich, 6 
 Pittsburgh Legal .Journal, X. S. 174. A like decision was made in Wait v. Green, 36 
 N. T. 556, and overruled or qualified in Ballard \. Burgett, 40 ><". Y. 314. See Austin 
 V. Dye, 46 K. T. 500; Comer v. Cunningham, 77 N. Y. 391; Brewer v. Ford, 54 Hun, 
 116; S. C. 59 Him, 17; Frank v. Batten, 49 Hun, 91; Sargeant v. Metcalf, 5 Gray, 
 506; Hart v. Carpenter, 24 Conn. 427; Bigelow v. Huntley, 8 Vt. 151. 
 
 * Hasbrouck v. Lounsbury, 26 N. T. 598. 
 
Geatuitous Commissions. 73 
 
 Teturning it after a trial. There is a condition in each of these con- 
 tracts : in the first, a condition on which the sale is to take place ; and 
 in the second, a condition on which the sale may be rescinded.' The 
 right to rescind depends upon the terms of the contract ; it is to be 
 exercised in the time and manner agreed upon by the parties.^ 
 
 § 86. The action of assumpsit lies for the recovery of money appro- 
 priated or misapplied by the defendant.^ It lies on a .valid promise 
 made by the defendant to a third person, for the benefit of the plaintiff.* 
 Under the present practice an action for money had and received to the 
 plaintiff's use may be maintained the same as under the old practice ; 
 without a demand, where it is received under an engagement to remit or 
 pay it over without delay ; '' and on a demand, where it is received as a 
 deposit or under circumstances that justify the agent or bailee in wait- 
 ing for instructions.* 
 
 Where a person accepts money from one man to deliver over to 
 another, an action of assumpsit lies for not paying it over.' And where 
 an agent undertakes to effect an insurance, and fails to do so, it is his 
 duty to give notice to his principal, for a breach of which duty the 
 action of assumpsit will lie.' 
 
 A gratuitous undertaking, not accompanied by a bailment of any kind, 
 as to obtain a policy of insurance, or to make an entry of goods for a 
 friend at the custom-house, entered upon, binds him to act in good faith 
 and with reasonable care ; it does not render him responsible for the 
 use of anything more than ordinary skill, or that degree of knowledge 
 and skUl usually possessed by men in his situation or business.^ 
 
 § 87. The Contract. An ingenious writer in the American Jurist main- 
 tains that there is, in fact, no contract formed between the mandator and 
 
 1 Hasbrouck v. Lounsbury, supra, and Hunt t. Wyman, supra; Bailey v. Colly, ."4 
 N. H. 29; Vincent v. Cornell, 13 Pick. 294. 
 
 2 Giles T. Bradley, 2 John. Cas. 253; Lord v. Kenny, 13 John. R. 219; Pinney v. 
 Hall, 1 Hill, 89. See also, Burrell v. Root, 40 N. T. 496. 
 
 8 Dumond v. Carpenter, 3 John. R. 183; Weston v. Barker, 12 John. R. 276. 
 
 * Del. & Hudson C. Co. v. Westchester Co. Bank, 4 Denio, 97; Dingeldiein v. Third 
 Ave. E. E. Co., 37 IST. T. 575; Kelly v. Roberts, 40 IST. T. 432, 438; Lawrence v. Fox, 
 20 N^. T. 268; Secor v. Lord, 3 Keyes, 525; Coster v. Mayor, 43 N. T. 399. 
 
 = Stacy V. Graham, 14 N. Y. 492; Schwinger v. Hickok, 53 N". T. 280, 286; Howard 
 V. France, 43 N". Y. 593; Mills v. Mills, 115 N. Y. 80; Matter of Cole, 34 Hun, 320; 
 Compton V. Elliot, 16 Jones & Spencer, 211. 
 
 « Phelps V. Bostwick, 22 Barb. 314. 
 
 ' Wheatley v. Low, Cro. Jac. 667. 
 
 ' Callender v. Oelrichs, 1 Arnold E. 401. 
 
 'Shiells V. Blackburne, 1 H. Black. 158; Mone v. Morgue, Cowper, 480; Percy v. 
 Millandon, 8 Martin N. S. 68, ">. See Dartnall v. Howard, 4 Barn, and Cress. 345; 
 Heinemann v. Heard, 50 N. Y. 27, oJ. 
 
74 Law of I^ailmekth. 
 
 the mandatary ; and that though the mandatary is hable for misfeasance 
 in the execution of his trust, he is so, not by virtue of his contract, but 
 for his tort} Tliis theory is maintamed in an elaborate article, the argu- 
 ment in which proceeds mainly upon the form of action, usually case, 
 which is brought for the violation of the trust ; the question of liabiUty 
 being always tried and decided on the plea of not guilty:^ " The form 
 of the action is, not assumpsit, but case ; the plea is not non-assumpsit, 
 but not guilty. In this view of the matter there is no inconsistency, no 
 principle is violated, everything is congruous. The bailor's want of 
 right to sue for non-feasance is entirely consistent with his right to 
 sue for misfeasance. Assumpsit cannot be for misfeasance as such. If 
 you sue for misfeasance, your action is grounded on tort, not on contract. 
 It arises t.c delicto, not ex contractu. If there be a binding contract to 
 do, and misfeasance in the execution of it, you may, generally speaking, 
 bring assumpsit ; but then the gist of your action is the non-perform- 
 ance of the contract ; and you must take care to declare on the non-per- 
 formance, and use the misfeasance as evidence of it ; for if there be mis- 
 feasance, the contract is not performed as it was agreed to be, and of 
 course assumpsit lies for the breach." 
 
 This distinction is very nicely drawn, but the difference between 
 callmg the undertaking of the mandatary a contract or a trust is not 
 very broad. In either case, the obligation arises out of the relation of 
 the respective parties to each other, and the tort or wrong consists in 
 the failure to perform the act undertaken, with the degree of care whicli 
 that obligation imposes upon him. Commentators and judges have uni- 
 formly spoken of this undertaking as a contract, treating and enforcing 
 it as such, as often as it has been brought before a judicial tribunal, or 
 discussed as an elementary question. It is none the less a contract 
 because, in most cases, it is implied by law ; whether a recovery may be 
 had for its violation depends upon the plaintiif's showing that the de- 
 fendant has failed to discharge the obligations it cast upon him, that is, 
 has failed to do the act with proper care. Though the form of the 
 action be case, it is usual and necessary to incorporate into the com- 
 plaint the substance of the contract, and the plea of not guilty puts in 
 issue simply the allegations of damage or loss by the negligence alleged.' 
 Other matters must be pleaded specially, as in actions of assumpsit. In 
 the action of case, against a common carrier, the plea of not guilty 
 operates only as a denial of the loss or damage through the default or 
 
 1 Vol. 16, page 275. 
 
 2 Idem, 262. 
 
 2 Appendix to Warren's Law Studies, 2d ed. p. 37. See also, form of declaration, 
 Tates' Pleadings, 371; and So. Ex. Co. v. McVeigh, 20 Gratt. Va. 264. 
 
Gkatxjitous Commissions. 7& 
 
 negligence charged, but it does not put in issue the fact of the receipt 
 of the goods by the defendant as a carrier for hire, nor the purpose for 
 which tliey were received. 
 
 Assumpsit and case are in many instances concurrent remedies, under 
 a practice so long established that it has interwoven itself with the first 
 principles of the common law. Mr. Justice Littledale thus states the 
 distinction between these two forms of action, from which we shall 
 perceive how far the tort diiiers from a breach of contract i^" Where 
 there is an express promise, and a legal obligation results from it, there 
 the plaintiff's cause of action is most accurately described in assumpsit, 
 in which the promise is stated as the gist of the action. But where, 
 from a given state of facts, the law raises a legal obligation to do a par- 
 ticular act, and there is a breach of that obligation and a consequential 
 damage, there, although assumpsit may be maintainable upon a promise 
 implied by law to do the act, still an action on the case, founded in 
 tort, is the more proper form of action, in which the plaintiff, in his 
 declaration, states the facts out of which the legal obligation arises, the 
 obligation itself, the breach of it, and the damage resulting from that 
 breach. For that is the most accurate description of the real cause of 
 action ; and that form of action, in which the real cause of action is 
 most accurately described, is the best adapted to every case." 
 
 § 88. The consideration for the contract or undertaking of the bailee 
 or the mandatary, in the action of case, is always stated to be the de- 
 livery of the goods at the instance of the defendant for the purpose con- 
 templated by the parties ; following which, comes the allegation that it 
 became the duty of the defendant to take due ci^re of the property so 
 intrusted to him, and redeliver or carry the same according to the 
 understanding under which it was received ; then follows the allegation 
 of a breach of duty, namely, an averment that the defendant, not regard- 
 ing his duty in that behalf, did not take proper care of the thing bailed, 
 whereby ensued damage or loss to the plaintiff. On a plea of not guilty, 
 to such a declaration, though it put in issue only the question of neg- 
 ligence, it is evident that the cause of action arises in part out of the 
 contract set forth by way of inducement. If we call it an implied con- 
 tract, as it is in most cases, and the breach of the duty imposed by law 
 a tort, the tort itself grows out of a failure to perform the duty or en- 
 gagement implied by law from the relation into which the parties have 
 entered towards each other. So that the emphasis which the writer in 
 the American Jurist places on the fact, that the remedy here is by an 
 action of tort, can hardly be held to negative the existence of a contract.* 
 
 1 Burnett v. Lynch, 5 B. and C. 609. 
 " 16 American Jurist, 264 to 275. 
 
76 Law of Bailments. 
 
 Indeed, though there be an express contract on which an action of as- 
 sumpsit would lie, still, if a common law duty results from the facts, 
 the party may be sued in tort for any neglect or misfeasance in the 
 execution of the contract ; ^ the action, however, is then grounded on the 
 misfeasance, and the contract is stated as matter of inducement. 
 
 § 89. It is plain that the form of pleading, while it may sometimes 
 illustrate the principles of law on which the rights of parties may depend, 
 does not determine this question. The cases all hold that there is a 
 contract, and that the owner's trusting the mandatary with the goods 
 is a sufficient consideration to oblige him to a careful management.^ An 
 executory contract, to assume the duties of a mandatary to be performed 
 at some future day, is not binding ; but the breach of a trust under- 
 taken voluntarily is a good ground for an action.* The actual entry 
 upon the thing and taking the trust upon himself is held a considera- 
 tion. j\Ir. Justice Stoey puts this case by way of illustrating the prin- 
 ciple involved : " If A should intrust a letter to B, containing money, to 
 pay his note at a bank in Boston, due on a particular day, and B should 
 gratuitously undertake to deliver the letter, and take up the note on 
 that day, and he should neglect to carry the letter, or to take up the 
 note, whereby the note should be protested, and .V should suffer a special 
 damage, B would, at the common law, be liable to an action for his neg- 
 ligence, and the delivery of the letter to B, under such circumstances, 
 would be a part execution, and a sufficient consideration to support the 
 action." ^ The same would be the case, no doubt, where the mandatary 
 gratuitously engages to carry other property from one place to another ; 
 the engagement coupled with an actual receipt of the thing bailed 
 creates the contract and binds him to its fulfillment.^ The contract 
 does not become perfect till some act is done by way of its execution. 
 
 § 90. There are many cases in which goods come into a party's pos- 
 session in the course of his business, or are left in his custody by acci- 
 dent or oversight, without any express contract for their safe-keeping, 
 and where no compensation is expected or paid for their storage. E. g., 
 a common carrier, receiving and transporting a passenger and his bag- 
 gage, ceases to be liable for the baggage as a carrier after the lapse of a 
 reasonable time after its arrival at the place of destination ; from that 
 time he holds the baggage under a modified liability, analogous to that 
 
 iBurnkt V. Lynch, 5 B. and C. 009; Boorman v. Brown, P, Q. B. 511; Tillinglmst's 
 Forms, 418. 
 ^Coggs V. Bernard, Ld. Raym. 909; .3 Salk. 11. 
 " Roll. Abr. 10; 2 Hen. T, 11; Elsee v. Gatward, 5 T. R. 14:1. 
 
 * Story on Bailm., § 171; ShlUabeer v. fjlyn, 2 Mees. and Welsh. 14."i. 
 
 * Coggs V. Bernard, Ld. Raym. 909. 
 
Geattjitotjs Commissions. 77 
 
 of a warehouseman. His duty to exercise care over the property thus 
 remaining in his hands grows out of the original contract ; he assumes 
 the duty of keeping the property till called for ; he does not hold it as 
 a mere gratuitous bailee ; he is therefore bound to exercise ordinary 
 care in keeping and preserving the property.^ His liability is modified 
 to that of an ordinary bailee, not liable for a loss by fire ; ^ the original 
 contract, though modified in respect to the degree of liability assumed 
 from a reasonable time after the arrival of the goods, being understood 
 to contemplate a possible delay, and to cover the delivery." 
 
 The same principle applies where goods are inadvertently left in a 
 street car, and the carrier takes charge of them. Though there be no 
 intent to deliver the property into the custody of the carrier, his custom 
 of taking charge of it, when so left by the oversight of a passenger, en- 
 hances the security of this mode of travel ; and the regulations to that 
 effect may reasonably be considered as incidental to the business. The 
 traveling public naturally assume the existence of a custom so reason- 
 able as this. ' And though the carrier never becomes liable as such for 
 the parcel, he is treated after taking charge of it as a bailee for hire, 
 bound to keep it with ordinary care.* 
 
 The engagement of an express carrier, who receives a note to be carried 
 into another State where the maker resides, and there presented for 
 payment and collected in case payment is refused, is enforced as one 
 entire contract. In substance it is a double contract ; a contract to 
 carry and present for payment ; and a contract to prosecute and collect 
 the demand. The carrier's undertaking is as broad as the instructions 
 under which he receives the note ; he is bound and liable to the same 
 extent as a bank receiving a note for collection, and he is answerable 
 for the conduct of his agents employed in any part of the business.^ 
 
 § 91. A bank or an agent, receiving a note or a draft for collection, 
 undertakes to perform the acts necessary to charge the drawer and in- 
 
 1 Bumell V. N. T. C. E. R. Co., 45 N. T. 184; Gary v. Cleveland & Toledo R. R. Co., 
 29 Barb. 35; Norway Plain Co. v. B. & M. E. E., 1 Gray, 271; Mattison v. KewTork 
 Cent. R. E. Co., 57 N. T. 552. 
 
 2 Eotli V. Buffalo & State Line E. R. Co., 34 N. T. 548. This case is sufficiently 
 favorable to the carrier. 
 
 3 McAndrew V. Whitlock, 52 N". T. 40. 
 
 * Morris v. Third Ave. E. Co., 1 Daly, 202; 23 How. Pr. 345; 2 Daly, 103; Town v. 
 N. & S. E. R. Co., 7 Hill, 47. The same rule applies where a ticket agent without re- 
 ward receives and stores parcels belonging to passengers. Green v. Birchard, 27 Ind. 
 483. 
 
 ^ Palmer v. Holland, 51 N. Y. 416; Ayrault v. The Pacific Bank, 47 IST. T. 570. In 
 some of the States a collecting agent is not held liable for the conduct of a foreign 
 agent netessarily employed in the business. 
 
78 Law of Bailments. 
 
 dorsers ; and his contract makes the agent answerable for the default 
 of the parties employed by him in the business.^ And though no specific 
 sum be paid for the service, the engagement is treated as a contract ; 
 a contract implied from the deposit of the bill or note by a customer 
 with his bank for collection.^ The business is incidental to that of the 
 bank ; and the service is not really gratuitous because the deposits of a 
 bank, being found to average a fixed sum, are made the basis of dis- 
 counts ; so that indirectly the bank is compensated for the service.^ The 
 rule of liability is now so long settled, that its basis in a consideration 
 of value is not often adverted to in recent cases. Indeed, the bailment 
 of negotiable paper for collection creates a contract of mandate, which 
 must be enforced where no pecuniary benefit can arise from it to the 
 bailee.* A party who undertakes the business of another, and being 
 capable of managing it, neglects to do so with due care, is responsible ; 
 and if he be not capable, he is still answerable because he ought not to 
 have engaged in a business beyond his capacity. 
 
 In several of the States, a bank receiving a draft or note for collec- 
 tion at a distant place, is bound to send it there to some suitable sub- 
 agent or bank to be collected, and is not answerable for the default of 
 the agent thus necessarily employed in the business.^ The second or 
 sub-agent is then held directly liable to the owner for any damages or 
 loss through his neglect." 
 
 § 92. The managers or directors of a corporation are chosen by its 
 members to take a general charge of its affairs and conduct its business. 
 
 1 Edwards on Bills & Xotos, 402, 40.5, 400, 47.5, 47C>; Reeves v. State Bank of Ohio, 
 8 Ohio St. 465; Allen v. Mercliants' Bank, 22 Wend. 215; Jlontgomery County Bank 
 T. Albany City Bank, 7 N. Y. 450; Commercial Bank v. Union Bank, 11 N". Y. 203; 
 Ayrault v. Pacific Bank, 47 N. Y. 570; Naser v. First Nat. Bank, 116 N. Y. 498; 
 Titus T. Mechanics' Nat. Bank, 05 N. J. L. 588; Saint Nicholas Bank v. State Nat. 
 Bank, 128 N. Y. 26; Wingate v. Mechanics' Bank, 10 Pa. St. 104; Tyson v. State 
 Bank, 6 Blackf. 225; Simpson v. Waldry, 30 N. W. Eep'r (Mich.), 199; Mackersy v. 
 Eamsays, 9 CI. & Fin. 818. 
 
 2 Allen V. Merchants' Bank of N. Y., 22 Wend. 215; Salt Springs National BankT. 
 Wheeler, 48 N. Y. 492. 
 
 ^Smedes v. Bank of Utica, 3 Cowen, 662; 20 John. R. 372; Foster v. Fuller, 6 
 Mass. 5S. 
 * Durnford v. Patterson, 7 Martin, R. 460. 
 
 5 Dorchester & Milton Bank v. New England Bank, 1 Cush. (Mass.), 177; Etna Ins. 
 Co. V. Allen Bank, 25 111. 243; Wingatp a. Mechanics' Bank, 10 Pa. St. 104; East 
 HaddamBank v. Scovill, 12 Conn. 303; Third Nat. Bank v. Vicksburg Bank, 61 Miss. 
 112; Guelich v. Nat. State Bani, 56 Iowa, 404; Daly v. Butchers & Drovers' Bank, 
 56 Mo. 94; Bank of Louisville v. First Nat. Bank, 8 Bast. (Tenn.), 101. 
 
 6 Bank of Washington v. Tiplett, 1 Peters, 25 : Fabers v. Mercantile Bank, 23 Pick. 
 330; Lawrence V. Stonington Bank, Conn. 521. 
 
Gratuitous Commissions. 79 
 
 It is not contemplated that they should devote their whole time and 
 attention to the institution, and guard it from injury by constant super- 
 intendence. Other officers, on whom compensation is bestowed for the 
 employment of their time in its affairs, have the immediate management. 
 In relation to these officers, the duties of directors are those of control ; 
 and the neglect which would render them responsible for not exercising 
 that control properly must depend on circumstances, and be tested in 
 a great measure by the facts of the case. Where nothing has come to 
 their knowledge to awaken suspicion as to the fidelity of an offtcer, 
 ordinary attention to the affairs of the institution is sufficient ; but 
 where they become acquainted with any fact calculated to put prudent 
 men on their guard, a degree of care is requii-ed commensurate with the 
 evil to be avoided, and a want of that care makes them responsible.^ 
 
 The powers conferred upon the directors and the nature of the busi- 
 ness have an important bearing upon the duties prescribed to them by 
 law. E. g., the directors of a bank alone have the power to make loans 
 and discounts, and hence it is a negligent omission of duty on their part 
 to permit the business of discounting notes and bills with the funds of 
 the bank to pass into the hands of its officers.'^ They act for the cor- 
 poration as a body, and each director has a right to examine its books ; 
 he has a right to know what has been done at a meeting of the board 
 when he was not present.' As a fair inference from this right, a direc- 
 tor ought to know the course of its business and the situation of its 
 affairs.* By accepting the trust, he is charged with the duty of taking 
 all reasonable care in the management of the concerns of the bank. 
 
 !■ Percy v. Millandon, 8 Martin, IST. S. 68, 73; Scott v. Depeyster, 1 Edw. Ch. 541. 
 •See Briggs v. Spaulding, 141 U. S. 132; Louisville Savings Bank v. Caperton, 87 Ky. 
 306; Cutting v. Malilor, 78 N. Y. 460; Onderkirk v. Central Xat. Bank, 119 N. T. 
 263, 272. 
 
 2 Bank of Comrs. v. Bank of Buffalo, 6 Paige Ch. E. 497, 502; Bank of U. S. v. 
 Dunn, 6 Peters 51. 
 
 ^Tlie People v. Tliroop, 12 Wend. 183; People v. Pacific Mail S. Co., 50 Barb. 
 280. 
 
 * It is undoubtedly the duty of bank directors to use ordinary diligence in acquiring 
 knowledge of the business of the bank. United Society of Shakers v. Underwood, 9 
 Bush (Ky.), 609. Where one voluntarily takes the position of trustee or director of 
 a corporation, good faith, exact justice, and public policy require of him such a degree 
 of care and prudence that men prompted by self-interest generally exercise in their 
 own affairs. Hun v. Cary, 82 N". T. 65, 71. Directors cannot, in justice to those who 
 deal with the bank, shut their eyes to what is going on around them. It is their duty 
 to use ordinary diligence in ascertaining the condition of its business and to exercise 
 a reasonable control and supervision of its officers. That which they ought by proper 
 diligence to have known as to the general course of business in the bank, they may 
 be presumed to have known in any contract between the corporation and those who 
 are justified by the circumstances in dealing with its ofiicers upon the basis of that 
 
80 Law of Bajl.ments. 
 
 § 93. The directors of a corporation entrusted with its funds, and with 
 the management of its business, are certainly liable for losses which 
 happen through gross negligence and mattention to the duties of their 
 trust.i They ai-e not answerable for honest mistakes or for errors of 
 judgment.^ They do not become sureties for the agents they employ : 
 they receive from the corporation no direct compensation for their serv- 
 ices; as stockholders they receive dividends from its earnings with the 
 others, and are hence held liable for ordinary neglect, or for the omission 
 of that care which men of common prudence take of their own concerns.' 
 The relation between them and their co-stockholders is analogous to 
 that of partners ; * they also stand in nearly the same situation as gen- 
 eral agents intrusted with the conduct of an important business.'" 
 
 § 94. The action of the directors, or of the legal quorum required for 
 the transaction of business, is the act of the corporate body itself; the 
 corporation is responsible for their acts, though done in violation of law.' 
 In a general sense, the board of directors act for the benefit of the share- 
 holders ; in a legal sense, they do not exercise a delegated authority; 
 in their dealings with others they constitute the corporation.' And. 
 
 course of business. Martin v. Webb, 110 U. S. 7, 15. The board of directors is pre- 
 sumed to have the linowledge possessed by a prior board. ^Mechanics' Bank v. Seton, 
 1 Peters, 299, 309. It has been held, in an action by a depositor against the directors 
 of an insolvent bank for the conversion by its officers of a special deposit, that the de- 
 fendants were chargeable with knowledge of such facts as appear upon the books and 
 papers of the bank. United Society of Shakers v. Underwood, 9 Bush, 609. But in 
 the courts of this State and of the United States it is settled by recent decisions that 
 knowledge of all the affairs of a bank, or of what its books and papers would show, 
 cannot be imputed to a director for the purpose of charging him with liability; and 
 that there is no rule of law which charges a director or stockholder of a corporation 
 with actual knowledge of its business transactions merely because he is such director 
 and stockholder. Eudd v. Robinson, 120 :N". Y. 113; Briggs v. Spaulding, 141 U. S. 
 1.32; and see Wakrman v. Dalley, 51 N. Y. 27. 
 
 1 Eobinson v. Smith, 3 Paige, 222 ; Brinckerhoff v. Bostwick, 88 N. Y. 52 ; Hun v. 
 Cary, S2 X. Y. 05. 
 
 2 Harman v. Tappenden, 1 East, 555 ; Witters v. Sowles, 31 Fed. Rep. 1 ; Wallace v. 
 Lincoln Savings Bank, 89 Tenn. 630; VanDyck v. McQuade, 80 X. Y. 38 ; AViUiamsT- 
 McDonald, 37 N. J. Eq. 409 ; Spering' s Appeal, 71 Pa. St. 11. But as a director is bound 
 to exercise ordinary skill and judgment, he cannot, when loss has been occasioned by 
 his failure to exercise them, excuse himself by claiming that he did not possess them. 
 Hun V. Cary, 82 X. Y. 65. 
 
 3 Scott V. Depeyster, 1 Edw. C'h. 513, 527, 543; Briggs v. Spaulding, 141 U. S. 132; 
 Clews V. Bardon, 36 Fed. Rep. 617; Dunn v. Kyle, 14 Bush (Ky.), 1.34. See Preston t. 
 Prather, 137 U. S. 604. 
 
 " Bailey v. Bancker, 3 Hill, 188. See Bissell v. N. S, & X. I R. Cos. 22 X. Y. 258. 
 ^ Andrews v. Murray, 33 Barb. 354; Richardson v. Abendroth, 43 Barb. 162. 
 •'■ Bank Comrs. v. Bank of Buffalo, 6 Paige, 497. 
 ' Burrill v. Nahant Bank, 2 Melc. (Mass.), 163. 
 
Gratuitous Commissions. 81 
 
 where they allow the business of the corporation, a bank, to be trans- 
 acted by an ofBcer or financial manager for a length of time, his dealings 
 with third persons will bind the corporate body.^ The officers of a cor- 
 poration act as agents, and are Uable as such.^ Actmg with authority, 
 their acts and contracts will bind the corporation.' 
 
 § 95. The directors or managers of a corporation are trustees, answer- 
 able to its members or shareholders for any breach of trust, or any mis- 
 appropriation of the corporate funds, or for any want of good faith in 
 their dealings with its property.' An action may be maintained by a 
 stockholder, in his own behalf, and in behalf of the other stockholders, 
 against the directors acting in bad faith. In equity a director may be 
 treated as the agent or trustee of the stockholders, and held liable on 
 the ground that he acts in a fiduciary capacity.^ 
 
 Officers entrusted with the transfer of the stock on the books of a 
 corporation are liable to any subsequent purchaser of unauthorized or 
 spurious stock, fraudulently issued by them. The right of action arises 
 upon the purchase.* The corjporation is also liable to the purchasers of 
 such fraudulent and spurious stock, where it has through its own negli- 
 gence and misplaced confidence furnished the opportunity and permitted 
 the over-issue ; it is liable for the fraud perpetrated by its agent within 
 the letter of his authority in respect to matters which lie peculiarly 
 within his knowledge.' 
 
 § 96. Remedies. Every misuse or misappropriation of goods intrusted 
 to the mandatary will render him liable, being a Ijreach of the contract 
 under which he receives them.* A misuser of the goods in contraven- 
 
 1 Smith V. Lansing, 22 N. T. 520. 
 
 2 Austin V. Daniels, 4 Denio, 299. 
 
 8 Olcott V. Tioga, R. Co. 27 N. T. 546. 
 
 4 Butts V. "Wood, 38 Barb. 181; S. C. 37 N. T. 317; Barnes v. Brown, 80 K. T. 527. 
 
 5 Cumberland Coal Co. v. Sherman, 30 Barb. 553 ; Michoud v. Girod, 4 How. U. S. 
 554; Case v. Carroll, 35 N. T. 385; Brinckerhoff v. Bostwick, 88 N. T. 52, 59. But 
 an action against an officer of a corporation to recover damages for a fraudulent mis- 
 appropriation and conversion by him of the corporate property can only be brought by 
 the stockholder in his own name after application to and refusal by the corporation to 
 bring the suit. Greaves v. Gouge, 69 N. T. 154. 
 
 8 Shotwell V. Mali, 38 Barb. 445; S. C. 36 N. Y. 200. 
 
 ' N. T. & K H. E. R. Co. V. Schuyler, 34 ]S^. T. 30; Titus v. Brest. etc.G. W. Turnpike 
 Road, 61 N. Y. 237. The niunber of shares of the stock being fixed by law, and out- 
 standing in the hands of the shareholders, no one but the transfer agent would be 
 likely to know that a given number of shares represented the genuine stock. A pur- 
 chaser therefore has a right to act upon his assertion as to that matter of fact, since 
 it rests peculiarly within the knowledge of the agent. 
 
 « Be Tollennere v. Fuller, 1 So. Car. Const. E. 121 ; Ulmer v. Ulmer, 2 Xott and 
 llcCord, 489. 
 
 6 
 
82 I^AW OF Bailmbkts. 
 
 tion of the trust will amount to a conversion of them, and this of course 
 renders the mandatary liable for their value, since by such act he 
 appropriates them as his own.^ After such an unauthorized assertion of 
 title, or the right of control over the property, the mandatary will be 
 charged with every risk attending it.^ This follows logically from the 
 fact that any conduct or act which amounts to a conversion renders the 
 mandatary responsible for the property, so that the owner may recover 
 the same, or its value, m an action as he may elect. 
 
 § 97. The owner's remedy, where a mandatary receives money to de- 
 liver to another and fails to make the delivery, must depend upon the 
 contract, or upon the relation in which the parties stand to each other- 
 If the money be sent by an agent to the owner according to his instruc- 
 tions, the owner alone may sue for and recover it ; the agent retains no 
 interest in the money.'' If the money be placed in the hands of the 
 mandatary by a debtor, to be delivered to his creditor, an action may he 
 brought by either the debtor or the creditor to recover the money ; by 
 the debtor because it is his money and he is interested in having it paid 
 over ; and by the creditor because the bailee has promised to pay it to 
 him. In both of these cases it is proper to sue on the contract ; as it is 
 in all cases where, by the understanding of the parties, the baUee is at 
 liberty to deliver the same amount in other bills.* 
 
 When the money is delivered to a mandatary in a sealed package, an 
 action of assumpsit for money had and received cannot be maintained 
 without showing that he has broken the seal and appropriated the 
 money to his own use. It is a breach of trust in him to break the seal, 
 and the law will not infer such an act from his mere omission to deliver 
 the package within a reasonable time.^ 
 
 § 98. Failing to deliver a package of money within a reasonable time, 
 it is the duty of the mandatary to render some account of it ; and if on 
 demand he refuses to deliver or to give any account of the package, an 
 action may be safely brought against him for its loss through his neglect.* 
 
 1 Holbrook v. Wright, 24 Wend. 169; BrOTro v. Hotchkiss, 9 John. E. 361. 
 
 2 Sargent v. Giles, .s New Hamp. Eep. :j25. 
 
 8 Thompson v. Fargo, 49 N. Y. 188. The contract, though made by the agent, enures 
 to the benefit of the owner ; and where the agent has fulfilled his whole duty, and 
 delivered the money as he was directed to, he has no interest in it. The owner must 
 bring the action, or at least a party interested in the fund. Krulder v. Ellison, 47 
 N. T. 36; Green v. Clarke, 12 N. Y. 343. 
 
 * Del. & H. Canal Co. v. Westchester Co. Bank, 4 Denio, 97. An infant cannot be 
 charged in an action of tort in such a case. Root v. Stevenson, 24 Ind. llo. 
 
 ^ Beardslee v. Richardson, 11 Wend. 25. 
 
 " Beardslee V. Richardson, 11 Wend. 25; Boies v. Hartford, etc., E. R. Co., 37 Conn. 
 272; Dunn v. Branner, 13 La. Ann. R. 452; Newstadt v. Adams, 5 Duer, 43; Schwerin 
 
Gkatuitotjs Commissions. 83 
 
 Fnder the Code practice, a complaint alleging the facts would be suffi- 
 cient to establish a cause of action, without giving it a name. It 
 ■would prima facie establish a right to recover in an action in the 
 nature of trover; because a failure to deliver to the owner on de- 
 mand is evidence of a conversion ; and it is a conversion where the 
 bailee has the package or goods in his custody at the time the demand 
 is made.'' 
 
 § 99. A delivery of a money package to a boy or to another man to 
 complete the execution of the trust is unauthorized ; it is an act of 
 gross negUgence.^ A misdelivery of the package, that is, a delivery of 
 it intentionally or by mistake through inattention to a wrong party, 
 renders the mandatory liable to the true owner. His good faith will 
 not protect him ; he is bound to deliver the property to its owner.^ It 
 will not excuse him to show that he made the delivery under a forged 
 order ; * unless he is to be treated with some favor not shown to other 
 bailees. Without regard to the motive, the sale of another man's prop- 
 erty without his consent is a conversion of it, and in actions of trover 
 a misdelivery by a bailee has the same effect.^ Clearly it casts upon 
 him the burden of showing a loss of the property without any default 
 or want of ordinary care on his part." 
 
 § 100. A trust is often created, and a contract relating to goods is 
 often made, for the benefit of a third person ; and that person is permitted 
 to enforce the contract or trust by an appropriate action. His want of 
 knowledge of the trust from the first will not affect his rights ; he 
 may affirm it afterwards, and by affirming the trust he acquires the 
 legal right to insist upon its execution ; it being beneficial to him, his 
 assent to the trust will be presumed until the contrary appears.' The 
 action of assumpsit is a proper remedy, where a contract can be implied 
 from the facts and circumstances ; as it may be where money or goods 
 are sent or dehvered by A to B, to be by him paid or delivered over to 
 C, there being a valid consideration between A and C, the party bene- 
 
 V. McKle, 5 Kobt. 404. The burden of proof is on the bailee, where the goods are not 
 returned or are returned in a damaged condition. Cumins v. Wood, 44 111. 416. 
 
 1 Lockwood V. Bull, 1 Cowen, 322. 
 
 2 Skelley v. Kahn, 17 III. 170; Colyar v. Taylor, 1 Coldw. (Tenn.) 372. 
 
 3 Willard v. Bridge, 4 Barb. 361; Koykendall v. Eaton, 55 Barb. 188. 
 
 * Hawkins v. Hoffman, 6 Hill, 586. See Price v. Oswego & Syracuse K. K. Co., 50 
 N. T. 213; McEntee v. New Jersey Steamboat Co., 45 K. T. 34. 
 
 ^ Hicks V. Cleveland, 48 N". Y. 84. 
 
 * Lancaster Co. National Bank v. Smith, 62 Pa. St. 47; Maury & Osborn v. Coyle, 
 34 Md. 235, 247. 
 
 'Cumberland v. Codrington, 3 John. Ch. R. 229, 2U1; Shepherd v. McEvers, 4 John. 
 Ch. E. 136; Weston v. Barker, 12 Johns. 276. 
 
84 Law op Bailments. 
 
 ficially interested.! The plaintiff need not have been privy to the con- 
 sideration.^ 
 
 § 101. The Code has abolished the old forms of action, but has not 
 abolished the previously recognized causes of action.^ Hence in many 
 cases the bailor has an election, now as formerly, to sue on the bailee's 
 implied contract, or to waive the contract and resort to an action in the 
 nature of replevin, case or trover. The choice of the action to be 
 brought is naturally determined by the remedy given by way of arrest 
 ui actions of tort.^ If the bailee has been guilty of a conversion, an 
 action of trover may be brought against him ; as where he has given a 
 mortgage or made an absolute sale of the property, in violation of tlie 
 trust. ^ The owner should make his election of remedies with care con- 
 sidering the situation of the parties ; ^ and should not attempt to com- 
 bine inconsistent causes of action ; since by so doing he may lose an 
 advantage otherwise within his reach.^ He should also take care not 
 to bring an action of replevin to recover the possession of securities or 
 scriii, so situated that a delivery cannot be adjudged to the plaintiff, 
 the title being in the defendant under a trust ; since his true remedy is 
 by a suit in ec^uity.' 
 
 § 102. The bailor cannot sue in trover, or in an action in the nature- 
 of trover, unless there has been a wrongful conversion of the property ; 
 and when he sues in that action, it is not to recover damages for the 
 non-performance of any contract, but to obtain redress for the tort. 
 The contract of bailment may be given in evidence for the purpose of 
 proving the plaintiff's title, and showing that the property was in pos- 
 
 ^Berly v. Taylor, '> Hill, 577; Sturtevant v. Orser, 24 N. Y. 538; Barker v. Bradley,, 
 42 N. Y. 316; Barker v. Bucklin, 2 Denio, 4.5. 
 
 2 Lawrence v. Fox, 20 X. Y. 2CS. 
 
 3 Denio, J., in Hull v. Carnly, 11 N. Y. 501, 510. 
 
 ■* Brown v. Treat, 1 Hill, 225; Duguid v. Edwards, 50 Barb. 28.^; ilcGovem v. Payn, 
 32 Barb. S.3, 91 ; Bowen v. True, 5.3 N. Y. 640. 
 
 5 Sargent v. Gile, 8 X. II. 325; Stanley v. Haas, 40 Cala. 474; Ogden v. Lathrop, 1 
 Sweeny, 04.3. 
 
 « As an illustration, see Morris v. Rexford, IS N. Y. 552; and Rodermund v. Clark, 
 46 N. Y. 354. The law does not permit a party to pursue conflicting and inconsistent 
 remedies. Sanger v. Wood, 3 John. Ch. 410 ; Bowen v. Mandeville, 05 K. Y. 237 ; Butler 
 v. Wehle, 4 Ilun, 54; Mills v. Parkhurst, 120 X. Y. 89; Bach v. Tuch, 126 K Y. 53; 
 Grossman v. Universal Rubber Co., 127 IN". Y. 84; Fowler v. Bowery Savings Bant, 
 113 K. Y. 450; Conrow v. Little, 115 X. Y. 387; MoUer v. Tuska, 87 N. Y. 166. 
 
 'See Bowen V. True, supra; Smith v. Knapp, 30 N^. Y. 581; Elwood v. Gardner, 
 45 N. Y. 349; Madge v. Ping, 71 X. Y. 608; McGovern v. Payn, 32 Barb, 83; Decatur 
 V. Goodrich, 44 Hun, 3, as to cases in which the order of arrest may be set aside or 
 the defendant discharged from imprisonment on execution. 
 
 8 Wheeler v. Allen, 51 N. Y. 37. See Western R. R. Co. v. Bayue, 75 K. Y. 1. 
 
Gkatuitous Commissions. 85 
 
 session of the defendant ; but the contract is not the foundation of the 
 action. An action in the nature of assumpsit, it is true, may be brought 
 directly on tlie contract implied from the bailment ; but an action of 
 trover sounding in tort is brought for the wrongful appropriation of 
 the property.* 
 
 The action of trover lies against a bailee who, having property in his 
 possession under a stipulation to dehver it at .a particular place, on a 
 demand made, refuses to deliver it at all. By denying the right of the 
 bailor he makes himself answerable for the property in the proper 
 action. If the demand is made at the wrong place, and he answer that 
 he is readjr to deliver at the right place, there will be no breach of his 
 duty ; but an absolute refusal, though made at a place where he is not 
 bound to produce the goods for delivery, will render any further demand 
 unnecessary.^ This holds true wherever property is in the hands of a 
 mandatary or general bailee, on a trust connected with its custody or 
 disposition ; it must be disposed of, surrendered, or delivered, in the 
 manner, and at the time and place, contemplated in the contract. 
 
 § 103. The general rule that a bailee of property may maintain an 
 action against any stranger or third party for a loss, injury or conver- 
 sion of the same, applies to a mandatary.' He holds it under a trust ; 
 he has a special or possessory interest in it ; he is answerable for it 
 under his contract with the owner. But his right to recover against 
 a third party is not limited or measured by the liability he is under ; 
 suing in trover he may recover the full value of the property, where he 
 has little if any pecuniary interest in it.* He holds the excess above 
 his special interest in trust for the owner ; and hence in an action against 
 the general owner or one claiming under him, he recovers only to the 
 extent of his interest.^ 
 
 iSydam v. Smith, 1 Hill, 182; Smith v. Knapp, 30 N". T. 581, 588; Salt Springs 
 Nat. Bank v. Wheeler, 48 N. Y. 492. 
 
 ^Dunlop V. Hunting, 2 Denio, 643; Scott v. Crane, 1 Conn. 255; Higgins v. Em- 
 mons, 5 id. 76; Slingerland v. Morse, 8 John. E. 474; Mason v. Briggs, 16 Mass. 453; 
 2 Kent's Comm. 508; Kogers v. Weir, 84 K. Y. 463, 471; Long Island Brewery Co. v. 
 Fitzpatrick, 18 Hun, 389. 
 
 8 Ante, §§ 37 and 69; Kellogg v. Sweeney, 1 Lansing, 397; S. C. 46 N. Y. 291 ; Moran 
 V. Portland, 35 Maine, 55; Faulkner v. Brown, 13 Wend. 63. 
 
 * Bowen v. Fenner, 40 Barb. 383; Bass v. Pierce, 16 Barb. 595; Paddock v. Wing, 
 16 How. Pr. 547; Buck v. Kemsen, 34 N. Y. 383; Greene v. Clark, 12 N. Y. 343; 
 Little V. Fosset, 34 Maine, 545; White v. Bascom, 28 Vt. 268. 
 
 6 Lyle V. Barker, 5 Bin. 457, 460; Spoor v. Holland, 8 Wend. 445; Russell v. But- 
 terfield, 21 Wend. 300, 303; Allen t. Judson, 71 N. Y. 77; Fowler v. Haynes, 91 K. Y. 
 346; White v. Allen, 133 Mass. 423; Ehoads v. Woods, 41 Barb. 471; Seaman v. Luce, 
 23 Barb. 240; Chadwick v. Lamb, 29 Barb. 518; Fitzhugh v. Wiman, 9 N. Y. 559. 
 
86 Law of Bailments. 
 
 § 104. The rule allows either the general owner of property or the 
 bailee to maintain an action of trover for a conversion of it, or an action 
 on the case for an injury to it ; ' the right to sue is indispensable to 
 each to protect his particular interest, and is given for that purpose. 
 In a bailment determinable at the pleasure of the bailor, either may 
 bring an action of trespass or the action of trover ; and as the law does 
 not suffer a defendant to be twice harassed for the same cause, a judg- 
 ment in the first suit will be a bar to any further action." .Vs a general 
 rule, the bailee may recover against a third party for injuries to the 
 goods by force or negligence, to the full extent of the loss or damage ; 
 having a definite interest, as hirer for a term or for a specified purpose, 
 he recovers damages commensurate with the injury to the property, and 
 holds the excess above his interest in trust for the general owner ; ^ having 
 the possession of the property as a mere mandatary, liable over under 
 his contract, he also recovers to the full extent of the loss or injur v.* 
 And in these cases a recovery by the bailee is a bar to an action by the 
 general owner. 
 
 § 105. The general owner of chattels, let on hire for a defmite term, 
 cannot maintain trespass or trover for a conversion or for an injury 
 to them during the continuance of the term, because these actions can 
 only be maintained by a party in possession or having a present right 
 of possession ; * and also because the general ovmer, by a recovery in 
 trover or in trespass of the full value of the property, might thereby 
 overreach and appropriate his bailee's special property ; and this he 
 should not be permitted to do.^ Hence during the continuance of a 
 bailment on hire for a given term, the general owner's true remedy 
 against a stranger for an injury to the goods is by an action on the 
 case.' But where the bailee has put an end to the contract of bailment 
 by any wrongful act, the general ovmer may maintain an action of 
 trover for the property, agauist a purchaser with knowledge, or against 
 
 1 Smith V. James, 7 Cow. 328. 
 
 2 Greene v. Clark, 12 N. Y. 343; DiUenback v. Jerome, 7 Cow. 294; and as to 
 right of action by bailor, see note to case on pp. 300, 301; and Chadwick v. Lamb, 2!) 
 Barb. 518; and Bush v. Lyon, 9 Cow. 52; Orser v. Storms, 9 Cow. 687; Nicholls v. 
 Bastard, 2 Cromp. Meeson & Eos. 659. 
 
 8 White V. Webb, 15 Conn. 302; Benjamin v. Stremple, 13 111. 466; Wliite v. Bascom, 
 28 Vt. 269; Little v. Fossett, 34 Maine, 545. 
 
 * Kellogg V. Sweeney, supra; Moran v. Portland, supra. 
 
 6 Gordon v. Harper, 7 T. R. 9, 12; Swift v. Moseley, 10 Vt. 20S; Thorp v. Burling, 
 11 John. E. 285; Bush v. Lyon, 9 Cowen, 52; Forth v. Pursley, 82 111. 152. 
 
 ' Hasbrouck v. Lounsbury, 26 N. T. 598. 
 
 ' Gordon V. Harper, supra; Farrant v. Thompson, 5 Barn. & Aid. 826- Howard v. 
 Farr, 18 X. H. 457. 
 
GnATTJiTOtrs Commissions. 87 
 
 the bailee ; ^ and trespass or replevin against the purchaser in bad faith 
 who takes the property, under the unauthorized sale.^ 
 
 § 106. Burden of Proof . In actions against the mandatary, as in 
 others, the burden of proof rests on the plaintiff to establish his cause 
 of action, by proving each material fact necessary to create the liabil- 
 ity.* If the plaintiff in an action of case alleges the delivery of money, 
 inclosed in a letter, to the defendant, and that he undertook and prom- 
 ised to take care of and carry the same safely from one place to an- 
 other, and then dehver the package to the plaintiff ; and that, although 
 a reasonable time had elapsed, the defendant had not done so ; the plaint- 
 iff will be bound to show, among other things, that the money was lost 
 by the defendant's negligence, or could not be obtained on request. By 
 showing a demand and refusal to deliver the package after a reasonable 
 time, he will be entitled to recover, unless the defendant account for 
 the loss by showing the package lost without fault on his part, that is, 
 without gross negligence.* The evidence that the defendant refused to 
 give any information in respect to the package, would change the bur- 
 den of proof from the plaintiff to the defendant ; or, submitted to the 
 jury without explanation, it would be sufficient to render the manda- 
 tary liable. 
 
 § 107. When the mandatary has converted the property to his own 
 use, and an action in the nature of trover is brought against him for the 
 conversion, the burden of proof lies on the plaintiff to show that the 
 defendant has assumed to himself the property and right of disposing 
 of the plaintiff's goods. ^ The action assumes that the defendant came 
 lawfully into possession of the goods, and it is sustained by showing a 
 breach of the trust, or an abuse of such lawful possession. This famil- 
 iar principle is applicable to choses in action as well as to chattels. If 
 the mandatary, intrusted with the goods of another, puts them into the 
 hands of a third person, contrary to orders, it is a conversion." So, if 
 he be intrusted with a promissory note to be used in a specified man- 
 ner, and he dispose of it differently, it is a misuse or disposition of the 
 note contrary to orders, which will sustain the action.' Even where the 
 
 1 Swift V. Moseley, 10 Vt. 208; Morse v. Crawford, 18 Vt. 499; Camp v. Mitchell, 
 34 Miss. 449. 
 
 2 Ely T. Ehle, 3 N. Y. 506. 
 
 8 Williams V. East India Co., 3 East K. 192; Doorman v. Jenkins, 2 Adolph and 
 Ellis K. 80; Hayes v. Kedzie, 11 Hun. 577. 
 
 * Beardslee v. Richardson, 11 Wend. 25; Coykendall v. Eaton, 55 Barb. 188; New- 
 stadt V. Adams, 5 Duer, 47; Boies v. Hartford, etc., E. E. Co., 37 Ct. 272. 
 
 5 Baldwin v. Cole, 6 Mod. 212; McCombie v. Davies, 6 East. 540. 
 
 « Syed V. Hay, 4 Term Eep. 260; Kowing v. Manly, 49 N. T. 193. 
 
 ' Mm-ray v. Burling, 10 John. E. 172; Decker v. Mathews, 5 Sand. 439; 12 K. T. 
 
gg Law of Bailments. 
 
 plaintiff has repossessed himself of the thing bailed, the action may be 
 sustamed for the breach of trust, which is a conversion ; ' and the amount 
 of the recovery will depend upon the nature of the case.. If it be a 
 negotiable note, which has been transferred for value to a bova fide 
 holder, and afterwards paid by the plaintiff, the recovery will be for the 
 face of the note ; and the plaintiff may recover the face of the note 
 without proving payment.'^ 
 
 § 108. In order to mamtain an action in the nature of trover against 
 a mandatary, who always comes legally into possession of the property, 
 it is necessary to show a demand and refusal, or an actual conversion, ^ 
 The rule was held differently where the possession itself was tortious, 
 which is an actual conversion.* The general principle is that a demand 
 and refusal, as against one who has chattels in trust for another, are 
 prima facie evidence of a conversion ; ^ but this evidence may be over- 
 come by counter testimony, going to negative the presumption of a con- 
 version arising from such refusal on demand. The effect of the demand 
 will depend upon the present relation of the parties at the time it is 
 made ; if the defendant refuse to dehver the goods according to con- 
 tract, he having the possession, he becomes liable for them." 
 
 § 109. An action m the nature of trover against a bailee does not 
 
 313; Thayer v. Manley, 73 N". T. .305; Powell v. Powell, 71 N. Y. 71; Develin v. Cole- 
 man, 50 N. Y. 531; Hynes v. Patterson, liS Hun, u^S; Bunger v. Eoddy, 70 Ind. 26. 
 
 1 2 Esp. X. P. 190, 101; Ingalls v. Lord, 1 Cowen E. 240; ante, § 01; Brewster v. 
 Silliman, 38 N. Y. 423, 428. 
 
 2 2 Esp. N. P. 190, 191; Ingalls v. Lord, 1 Cowen E. 240; Decker v. Mathews, supra. 
 ^ This is the general rule where the original possession of the defendant was lawful 
 
 and not tortious. Loveless v. Fowler, 79 Ga. 134; Sager v. Blain, 44 N". Y. 445, 448; 
 Goodwin v. Wertheimer, 99 N. Y. l.J3; Yeager v. Wallace, 57 Pa. St. 305; Carleton 
 V. Lovejoy, .54 Me. 445; Eyerson v. KaufHeld, 13 Hun, -387. 
 
 * Bates V, Conkling, 10 Wend. 389; Brown v. Cook, 9 John. E. 301. A wrongful 
 taking or a wrongful sale constitutes an actual conversion, and no demand before suit 
 is necessary. Levi v. Booth, 5x ilil. 305; Hake v. Bueli, 50 Mich. 89; Howitt v. Estelle, 
 92 111. 218; Ehoades v. Drummond, 3 Col. 374; Waller v. Bowling, 108 X. C. 289; 
 Smith V. .Jensen, 13 Col. 213; Follett v. Edwards, 30 111. App. 386; Blakey v. Doug- 
 lass, 10 East. Eep'r (Pa.) 746. Where there has been an actual conversion a demand 
 and refusal are unimportant. Knevick v. Eogers, 26 Minn. 344. 
 
 5 Packard v. Getman, 4 Wend. 613. 
 
 6 1 Taunt. 391 ; 4 Esp. 157. The use of the property in a manner different from that 
 agreed upon with the owner of it; Beach v. Earitan A- Del. Bay E, \\. Co., 37 X. Y. 
 457; Malone v. Eobinson, 77 Ga. 719; or the unauthorized use of it; Gove v. Watson, 
 61 N. H. 136; is a conversion of it. An imauthorizcd sale of the property by the 
 pledgee is a conversion; Lawrence v. Maxwell, 53 X. Y. 19; unless waived or not ob- 
 jected to; Bryan v. Baldwin, 52 X. Y. 232. And upon the same principle a pledge of 
 property by one to whom it was entrusted for sale is a conversion of the property, 
 Xichols V. Gage, 10 Oregon, 82. So if an agent entrusted with property to sell at a 
 price to be approved by his principal sells without such approval, he is liable for a 
 
Gratuitous Commissions. 89 
 
 lie for negligence, nor for goods lost or taken from him ; ^ it proceeds 
 upon the assumption that he has usurped the right of property over 
 them, by converting them to his own use.^ Coming lawfully into the 
 possession, it must be shown that he has sold or otherwise converted 
 the goods.* Where, however, the title is in the plaintiff, and it is 
 shown that the property was wrongfully taken from his possession, the 
 burden will be cast upon the defendant of showing that he came to the 
 possession of the property, by purchase or bailment, and without any 
 fault on his part.* This again, it seems, will transfer the burden of proof 
 to the plaintiff, to show a demand of the property, and a refusal, or some 
 other act of conversion.* 
 
 § 110. The action, in the nature of assumpsit for money had and re- 
 ceived, may be brought against a bailee or trustee who has converted 
 the property into money ; but in order to maintain this action against 
 two trustees jointly for money had and received to the use of the cestui 
 que trust, the plaintiff must prove a joint promise, either express or im- 
 plied. The fact that each of the defendants, who are trustees under an 
 assignment for the benefit of creditors, has admitted tlie receipt of ftmds 
 equal to the demand of the plaintiff, one of the creditors, and expressed 
 his willingness to distribute the same according to the terms of the 
 trust, does not raise an implied promise, such as will support an action 
 at law against the defendants jointly, as for money had and received. 
 Each trustee is answerable for his own acts only ; this is the general 
 rule ; and the law will not imply a joint promise on the separate state- 
 ments or admissions of each." 
 
 Property delivered and received as money will support the action 
 IDrecisely the same as if money itself had been delivered and received.' 
 
 conversion. Comley v. Dazian, 114 N. T. 161. A refusal to deliver on demand is evi- 
 dence of a conversion at the time of the refusal. Roberts v. Berdell, 52 N. T. 644. 
 Refusal to comply with a proper and formal demand is not Ipso facto conversion. It 
 is only a fact from which a wrongful conversion may be inferred, provided the cir- 
 cumstances are such as to warrant that inference. Blakey v. Douglass, 10 East. 
 Eep'r (Pa.) 746; Salt Springs Nat. Bank v. Wheeler, 48 N. T. 492 ; Andrews v. Shat- 
 tuck, 32 Barb. 396. 
 
 1 Salk. 655 ; 5 Burr. 2825 ; Bromley v. Coxwell, 2 B. & P. 438; Cairns v. Bleecker, 
 12 Johns. 300; Jervis v. JoUiffe, 6 Johns. 9; Salt Springs Nat. Bank v. Wheeler, 48 
 N. T. 492. 
 
 2 Storm V. Livingston, 6 John. E,. 44. 
 
 8 Barrett v. Warren, 3 Hill, 348; Acker v. Campbell, 23 Wend. 372; %I'Carty v. 
 Vickery, 12 John. K. 348. 
 * Barrett v. Warren, 3 Hill, 348, 351. 
 5 Bates V. Conkling, 10 Wend. 389. 
 »De Forest v. Jewett, 2 Hall E. 130. 
 ' Ainslee v. Wilson, 7 Cowen E. 062. 
 
90 Law of Bailjosnts. 
 
 And it is not necessary in all cases to give positive evidence that the 
 defendant has received money belonging to the plaintiff ; but where, 
 from the facts proved, it may fairly be presumed the defendant has 
 received the plaintiff's money, the plaintiff may recover in this action 
 for money had and received to his use.^ In general, this action cannot 
 be supported unless the defendant has in fact received money to the 
 plaintiff's use.^ 
 
 § 111. A recovery in trover for the value of goods, and a satisfaction 
 of judgment, vests the property In the defendant ; because this gives to 
 the plaintiff, at his suit, an equivalent for his property in damages. 
 There is no dissent from this rule, as a single aflftrmative proposition.* 
 In some of our States, the recovery of the judgment alone is held to 
 work a transfer of the property ; on the ground that by bringing this 
 action the plamtiff elects to convert his demand into a judgment for 
 the value of the property, which becomes a chose in action transferable 
 like any other security.* 
 
 In many cases the plaintiff has an election to bring assumpsit, tres- 
 pass, replevin, or trover ; and as a rule he is held to the logical conse- 
 quences of his election ; he recovers subject to the defenses and principles 
 applicable to that form of action which he adopts.'^ On the same ground, 
 the plaintiff, by adopting the action of trover, is said to elect to recover 
 damages in lieu of his property — an inference which would be of con- 
 trolling weight in favor of anybody but a wrong-doer. 
 
 The title is not changed by the act of conversion, nor by the exercise 
 of acts of ownership over the property. The owner of timber may re- 
 
 1 Tuttle V. Mayo, 1 John, E. 132. 
 
 2 Beardsley v. Root, U John. E. 465. 
 
 8 OsterhoutY. Roberts, 8 Cowen, 43; Curtis v. Groat, 6 John. E. 168; Thurst v. West, 
 31 N. y. 210, 215; Sharp v. Gray, 5 B. Monroe, 4; Jones v. McNeil, 2 Bailey S. C. 
 466; Lovejoy v. Murray, 3 Wallace, 1-19; 2 Kent's Com. 387, 388; Marsden v. Cornell, 
 62 N. T. 215, 220; Curtis v. Groat, 6 Johns. 168; Thayer v. Manley, 73 X. T. 30-'3, 309. 
 
 " Floyd V. Browne, 1 Eawle. 121 ; Fox v. The Northern Liberties, 3 Watts & Serg. 
 103; Carlisle v. Burley, 3 Maine, 2.j0; Loomis v. Greene, 7 Maine, .386; Murrell v. 
 Johnson, 1 Henning & Munford, 450; Hunt v. Bates, 7 E. I. 217; Buckland v. John- 
 son, 15 Com. Bench, 145, 157. The recovery of an unsatisfied judgment for a conver- 
 sion does not have the effect of transferring title to the property converted in Con- 
 necticut. Atwater v. Tupper, 45 Conn. 144. 
 
 5 Hunter V. Prinsep, 10 East. 378; Frothingham v. Morse, 45 N. H. 545; Baker v. 
 Cory, 15 Cftiio, 0; Coffey v. National Bank of Mo., 46 Mo. 140; May v. Le Claire, 78 
 U. S. 217. If the plaintiff waives the tort and sues in assumpsit, the defendant is 
 not permitted to set up his tort to defeat the action, and the recovery of a judgment 
 will bar a further action ex delicto by the plaintiff. Putnam v. Wise, 1 Hill, 240, 
 note; Hill v. Davis, 3 N. H. 384; Stockett v. Walkin's Admrs., 2 Gill. & J. 326, 342; 
 May v. Le Claire, 78 U. S. 217. 
 
Geatuitous Commissions. 91 
 
 claim it when made into shingles,^ or converted into coal,'' notwithstand- 
 ing it has lost its primitive form. So long as he can prove its identity, he 
 may foUow and retake it in whatever new shape it may have been 
 wrongfully made to assume. By bringing his action of trover, the 
 owner makes his election to demand the value of the property.' But 
 proof that the defendant refused to deliver it on demand shows a con- 
 version at the time when the demand is made ; the refusal being itself 
 a conversion, it is doubtful whether the defendant would be permitted 
 to show a prior act of conversion with a view to a reduction of damages ; 
 since that would be permitting him to found a defense upon his own 
 wrongful act.* 
 
 § 112. As a general rule, the measure of damages in the action of 
 trover is tlie value of the property at the time of the conversion, with 
 interest from that date ; a rule which is applied in all cases where the 
 property has a fixed value.^ Interest on the value from the date of the 
 conversion is a necessary part of a complete indemnity.^ 
 
 The law cannot favor a wrong-doer ; hence where the plaintiff is de- 
 prived of some special use of the property, or where the property natur- 
 ally fluctuates in value like stocks, the owner has been allowed to recover 
 the highest value of the things wrongfully converted, down to the day 
 of the trial ; certainly he is not limited to the value of the property on 
 
 1 Betts and Church v. Lee, 5 John. R. 349; 5 Hen. VII. 15; 12 Hen. VIII. 10; May 
 V. Le Claire, 78 U. S. 217. See Silsbury v. McCoon, 3 N. T. 379; Cavin v. Gleason, 
 105 ZST. T. 256, 261; Guckenheimer v. Angevine, 81 N. T. 394, 397; Newton v. Porter, 
 69 N. Y. 138, 137. 
 
 2 Curtis V. Groat, 7 John. R. 168; Babcock v. Gill, 10 John. R. 237. 
 
 2 Dillinghackv. Jerome, 7Cowen R. 294; Kennedyv. Strong, 14 John. R. 12S; Baker 
 V. Wheeler, 8 Wend. R. 505 ; Suydam v. Jenkins, 3 Sand. Superior Ct R. 628, and the 
 cases there cited. 
 
 * As the wrongful conversion of property does not deprive the owner of his title, he 
 may transfer that title to another, who, upon a demand and refusal of the person in 
 possession to surrender the property, may maintain an action against him for the con- 
 version. Although the previous owner of the property might have brought an action 
 for conversion, he was not bound to do so, and the previous wrong on the defendant's 
 part is no excuse for his failure to deliver it when demanded by the second owner. 
 There is no doubt but that there may be a second conversion. Serat v. Utica, etc., 
 E'yCo., 102N. T. 681. 
 
 5 Andrews v. Durant, 18 N. T. 496; Beecher v. Denniston, 13 Gray (Mass.), 354 j 
 Di.xon V. Caldwell, 15 Ohio St. 412; Kennedyv. Strong, 14 John. R. 128; Clark v. 
 Pinney, 7 Cowen R. 681; Neiler v. Kelly, 69 Penn. St. 403; Simpson v. Alexander, 35 
 Kansas, 225; Allen v. Kinyon, 41 Mich. 281; Hopper v. Haines, 71 Md. 64. 
 
 BMcCormick V. Penn. Central R. R. Co., 49 N. T. 303, 315; Hurd v. Hubbell, 26 
 Conn. 389, 483; Tates v. Mullen, 24 Ind. 277; Negus v. Simpson, 99 Mass. .388. See 
 Mercer v. Vose, 67 N. Y. 56; McCollum v. Seward, 62 N. Y. 316. 
 
S2 Law of Bailments. 
 
 the day of the conTersion ; ^ since that rule would give the wrong-doer 
 the opportunity to take another man's property and hold it with a view 
 to an increase in its value, and would give to the trespasser all the 
 advantages of a purchaser under a fair contract of sale. Damages for 
 the use of the property, in its original shape, are legitimate ; = and no 
 reason can be assigned to prevent the owner from recovering the value 
 of such use, instead of interest on the value of the property. In re- 
 plevin the jury are required to assess the present value of the property, 
 and the damages for its detention. 
 
 Special damages are not often recoverable ; being duly alleged, they 
 may be recovered when they are the natural or proximate consequence 
 of the wrongful act ; ^ as where money and time are expended in search- 
 ing for chattels wrongfully taken or appropriated.' Special damages 
 resulting from the effect produced upon the owner's business are too 
 remote ; ^ unless the action is brought to recover the team or the tools 
 with which he prosecutes his business." 
 
 By reason of a certain difference in the natural bias of mind existing 
 among jurists, the rule of damages appears in two forms or phases ; the 
 affirmative form gives to the owner the value of his property at the 
 time it was taken from him, with interest from that date, as an indem- 
 nity for the injury he has sustained ; and the negative form, or the ex- 
 ceptions from that rule, seem to be framed with the design of pre- 
 venting the wrong-doer from gaining any advantage through his 
 wrongful act. Hence the affiLrmative or general rule applies wher&the 
 conversion takes place without malice, or without any intent to invade 
 the rights of property; and it is evident that the tendency of opinion 
 
 iRomaine v. Van Allen, 26 X. T. 309; Burt v. Butcher, 3-t X. Y. 493; Scott y. 
 Rogers, 31 X. Y. 676; JIusgrove v. Beckendorff, .""jo Penn. St. 310; Ellis v. Wire, 33 
 Ind. 127; Lobdell v. Stowell, .51 X. Y. 70; Markham v. Jaudon, 41 X". Y. 235; Groot 
 V. Gile, 51 X. Y. 431. In the absence of circumstances calling for exemplary or special 
 damages, the true measure of damages in an action for the conversion of stocks is the 
 highest intermediate value of the stock between the time of its conversion and a 
 reasonable time after the owner has received notice of it to enable him to replace it. 
 Wright V. Bank of Metropolis, 110 X. Y. 237; Colt v. Owens, 00 ST. Y. 308; Gruman 
 V. Smith, 81 X. Y. 25 ; Galigher v. Jones, 129 TJ. S. 193. For the measure of damages 
 under the statutes of California, see Cal. Civil Code, § 3330. 
 
 ^Shotwell V. Wendover, 1 John. E. 65; Allen v. Fox, 51 N. Y. 502; Siiydam v. 
 Jenkins, 3 Sand. 014, 021 ; Haviland v. Parker, 11 Mich. 103. 
 
 3 Starkey v. Kelly, 50 X\ Y. 077. 
 
 * Bennett v. Lockwood, 20 Wend. 223; McDonal.I v. Xorth, 47 Barb. 530; Forsyth 
 V. Wells, 41 Penn. St. 291; Davis Sewing Machine Co. v. Best, 50 Hun, 76; Arzagav. 
 Villalba, 85 Cal. 191. . . 6 
 
 5 Brizsee v. Maybee, 21 Wend. 144. 
 
 " Bodley V. Reynolds, 8 Q. B. 779. See Hurd v. Hubhell, 20 Conn. 389. 
 
Gratuitous Commissions. 9S 
 
 is towards a uniform rule, giving tlie owner tlie value of his property 
 with interest from its conversion, or the value with interest from a 
 reasonahle time thereafter.^ 
 
 Under the English practice the court will sometimes stay the pro- 
 ceedings, on the defendant's paying the costs and restoring the subject 
 of controversy, where no special damages can be claimed for the con- 
 version, and where the value of the property remains unchanged. 
 Though this practice be scarcely known in this country, it assumes the 
 usual rule of damages, and also allows the plaintiff an opportunity to 
 recover damages for the detention as well as for the depreciation of the 
 property.^ In the action of replevin, this practice and the rule with 
 its qualifications are manifestly convenient and just; "and the same 
 result may be wrought out under our practice by an offer to allow 
 judgment.* 
 
 § 113. Notwithstanding the Code has obliterated the distinction be- 
 tween actions at law and suits in equity, and abolished the well-known, 
 forms of actions previously used in this State, the remedies by suit re- 
 main still essentially unchanged ; ° because the principles of law remain 
 as heretofore. The plaintiff must allege facts that constitute a cause 
 of action, and the allegations of his complaint must show a right of re- 
 covery under principles previously applied to the actions of replevin, 
 case, trover and the others.^ The statement contained in his complaint 
 must include every fact necessary to establish a right of action known 
 to the law. And, since the principles of the common law, as well as 
 the principles of pleading under it, must be studied and learned chiefly 
 from the decisions which have been made under forms of action now 
 disused, it is evident that the plaintiff's complaint must be drawn with 
 
 1 Matthews v. Coe, 49 N. T. 57; Baker v. Drake, 53 N. T. 211, overruling Markham. 
 V. Jaudon; Wyman v. Amer. Powder Works, 8 Cush. 168; Eoblnson v. Barrows, 48 
 Maine, 186; Cushman v. Hayes, 46 111. 145; Bates v. Stansell, 19 Midi. 91; Page v. 
 Fowler, 39 Gala. 412; Pinkerton v. Manchester E. R. Co., 42 N. H. 424. 
 
 2 Fisher v. Prince, 3 Burr. 1363; Whitlenv. Fuller, 2 W. Black, 902; Earlev. Holder- 
 ness, 4 Bing. 462. See Stevens v. Low, 2 Hill, 132. 
 
 ' Allen V. Fox, 51 N. Y. 562. Our practice is different. Brewster v. Silliman, 38 
 K. T. 423, 428. 
 
 * Code of Civil Pro., § 738. The offer may be made to allow judgment for the prop- 
 erty; but it must in all cases be explicit and definite, ilarble v. Lewis, 53 Barb. 432; 
 Tompkins v. Ives, 36 N. Y. 1~>. 
 
 6 Hall V. Southmayd, 15 Barb. Eep. 32; Horner v. Wood, id. 371; Barker v. 
 Eussell, 11 Barb. Eep. 303; Eodgers v. Rodgers, id. 595. A suit in equity and 
 an action at law may be combined. Davis v. Morris, 36 N. T. 569; Code of Civil Pro. 
 §484. • 
 
 8 Boyce v. Brown, 7 Barb. Eep. 80, and the cases there cited; Eldridge v. Adams, 
 54 Barb. 417. 
 
94 Law op Bailments. 
 
 at least a tacit reference to the requisites of pleading used in some one 
 of those forms. ^ Though the statute has abolished the forms, it has 
 not separated them from the adjudications which hare blended them 
 together through a long course of years. The terms, assumpsit, case, 
 trover, etc., convey the idea of distinct and well-known causes of action, 
 so that it is still more convenient to use them in speaking of legal 
 principles than to adopt the circumlocution necessary to express the 
 same ideas in popular language. The single term, trover, which has 
 been so commonly used as a remedy for the violation of the contract of 
 mandate, describes a cause of action brought for the unlawful detention 
 or conversion of goods ; in which the plaintiff's right to them, their 
 value, and the defendant's conversion of them, were put in issue and 
 necessary to be proved.- The plaintiff must have either a general or 
 special property in the goods, and a right to the immediate possession; 
 and where the defendant is a mandatary, it must be shown that he has 
 been guilty of some breach of trust, which the law regards as a conver- 
 sion of the property to his own use. We describe the suit accurately 
 under the new procedure, by calling it an action in the nature of 
 trover.^ 
 
 § 114. Th.e Contract^ hoio deterivraed. The death of the mandatary, 
 leading the mandate wholly unexecuted, works no change in the title 
 to the property ; ^ and where the trust is of a personal nature, his repre- 
 sentatives must have the liberty of restoring the property and thus 
 terminating the contract.^ And unless by the terms of the bailment 
 
 ' Childs V. Hart, 7 Barb. Rep. rwO; Rayner v. Clark, 7 Barb. 581; Garvey v. Fowler 
 4 Sand. R. (;6.5. 
 
 2 Tharpe v. Stallwood, 5 Mann, and Gr. Till; Armory v. Delamirie, 1 Strange, .505; 
 Meny y. Greene, 7 Jlees. and A\'. (il'.J; Tell v. Beyer, :;s X. Y. 161. In an action for 
 conversion tlie alleyalion of xalue is not a traversable one, and even on default, where 
 all the traversable averments ar.; taken as admitted, the plaintiff must prove bis dam- 
 ages if he seeks to recover more than a nominal amount. Connoss v. Meir, 2 E. D 
 Smith, 314, and cases cited; Raymond v. Traffarn, 12 Abb. Pr. 52; McKensie v Far- 
 rell, 4 Bosw. Ifl2, 202; De Graaf v, Wyckoff, \?> Daly, i^no; Starry. Cragin, 24 Hun, 
 177; Duffus v. Bangs, (U Hun, 2.;. See Thompson v. Halbert 109 N" Y 329 
 
 8 The Manhattan Co. y. Bentley, l.S Barb. Rep. 641; Conway y. Bush, '4 Barb. 
 Kep. :jb4. The cause of action must be stated in the complaint, and the de- 
 fense properly pleaded, and the judgment must follow according to the allegations 
 and proof; the Code has not changed this settled rule of practice. Wright y! Dela- 
 fleld, 2.5 N. Y. 266. And as a rule, a pleading which is sufficient in the action of as- 
 sumpsit at common law, is sufficient under the Code. Farron v. Sherwood 17 N. Y. 
 227. Suing on a special contract which he has fulfilled, plaintiff may recover on the 
 old count of indebitatus assumpsit. Hosley y. Black, 28 N. Y. 438. 
 
 * Hurd y. West, 7 Cowen, 7.'52. 
 
 5 Eoulston y. McClelland, 2 E. D. Smith, 60. 
 
Gratuitous Commissions. 95 
 
 some third party has acquired a vested interest in the property, the 
 bailee's executor or adminstrator will be justified in restoring the same 
 to the mandator.^ 
 
 On his death the mandatary's goods and effects pass into the custody 
 of his legal representatives, aud although a personal trust will not thus 
 devolve upon them, they will be bound to take care of the property 
 coming into their hands, and should be held liable for at least an equal 
 degree of care as that required of the deceased in keeping it. Though 
 they do not come under the mandatary's exact contract, they do become 
 bailees or custodians of the property in the due course of business. In 
 respect of an ordinary contract, it is their legal duty to fulfill it accord- 
 ing to its terms ; the estate is under the obligations of the contract, and 
 entitled to the moneys growing due thereon.^ In respect to property 
 held in trust, the rule is that it does not pass to the legal representatives, 
 but goes to the party for whom it is held.' So far as accrued liabilities 
 are concerned, the legal representatives are liable ; they represent the 
 deceased and must answer for his debts and torts beneficial to the 
 estate, e. g. the conversion of personal property.^ The law makes no 
 provision for the execution of a specific trust by the legal repre- 
 sentatives ; it leaves them to the liabilities growing out of the relation 
 voluntarily assumed by them.^ 
 
 They receive the trust property as individuals ; ^ it is not to be deemed 
 assets in their hands, unless the liability of the deceased has really 
 assumed the form of legal liability. In some cases the character of the 
 property will depend upon the facts to be ascertained on investigation ; '' 
 and here they will receive it conditionally. As between themselves, 
 neither is entitled to exclude the other from the custody or possession 
 of the property.' 
 
 § 115. "When the mandatary has money in his hands due to a third 
 person, and dies, he leaves his estate indebted for that amount, and it 
 is the duty of his legal representatives to discharge the debt ; ^ but where 
 
 1 Carle v. Bearce, 33 Maine, 337; Britton v. Aymar, 23 La. Ann. R. 63. 
 
 2 Riblet V. Wallis, 1 Daly, 360, 365. 
 
 3 Moses V. Murgatroyd, 1 John. Ch. 119. The property will not pass to an assignee 
 in bankruptcy. Kip v. Bank of K. T., 10 John. E. 63. 
 
 « Brocket v. Bush, 18 Abb. Pr. 337. 
 
 5 See Banks v. Wilkes, 3 Sand. Ch. 99; Bowman v. Rainetoux & Sabbatton, 1 Hobb. 
 Ch. 150. 
 
 « The statute specifies what shall be assets in their hands, not including any such 
 trust property. See Levin v. Russell, 42 N". T. 251. 
 
 ' Scoville V. Post, 3 Edw. Ch. 203; Champney v. Blanchard, 39 N. Y. 111. 
 
 8 V.\Mt V. Burt, 41 N". Y. 46. 
 
 8 Ante, §§ 86, 97. 
 
96 Law o:f Bailments. 
 
 he has a package of money or goods in his possession for a third party 
 whose property they are, and dies, his legal representatives acquire only 
 the bare custody of the articles ; they come into the possession of the 
 property without any express authority from the owner, and are to he 
 held liable for it, not as executors or administrators, hut on the same 
 general ground as the finder of goods. ^ 
 
 § 116. Under the general rule of the common law, the death of one of 
 two or more persons jointly authorized to act for another arrests the 
 execution of the power.^ And hence where joint mandataries are 
 authorized to do some private act requiring their consultation and con- 
 currence^ the death of one dissolves or puts an end to the power ; * in 
 other words, where an authority to act in a matter of a j^rivate nature 
 is conferred by the principal upon more than one person, all must act 
 in the execution of the power, unless it is given in such terms as will 
 authorize its execution by a less number.^ An authority conferred upon 
 a firm cannot he properly executed by the members that remain in 
 business, after its dissolution ; " and an authority given by a firm is 
 withdrawn by a change in its members with notice.® 
 
 § 117. The death of the mandator puts an end to all authority to 
 enter upon any new business or engagements in his name. Money or 
 personal property in the hands of an agent or mandatary, at the death 
 of the principal, goes to his representatives ; and where the authority 
 to complete the mandate is thus terminated, the law imposes upon the 
 mandatary the duty to restore the thing bailed to the party who repre- 
 sents the estate, or to the owner where the property belongs to some 
 other party. The law will imply an obligation to surrender the trust 
 in a way that shall be agreeable to equity ; ' and it seems the acts of an 
 agent or mandatary, before notice of the death, done in good faith in 
 the execution of the contract, will be held binding upon his principal's 
 estate ; " as where he completes a transaction or receives a payment on 
 behalf of his principal.^ 
 
 1 Ante, §§ 19, 90, 100, 10.3; McGehee v. Mahone, 37 Ala. 2.58. 
 
 niartine v. International Lite Ins. Society, .53 ^>^. Y. 339; Stlsnermann v. Cowing, 
 7 John. Cb. 275; Tooke v. Hollingworth, 5 Term E. 215. 
 
 ' Sinclair v. Jackson, 8 Cuwen, 54:!. 
 
 * Hawley v. Keeler, 53 X. Y. 114, 121. 
 
 6 Martine v. International Life Ins. Soc, 53 N. Y. 339; Hamilton v. Mutual Life Ins. 
 Co., Blatch. 235. 
 
 ^ Callanan v. Van Vleck, 36 Barb. 324; 41 K. Y. 619. 
 
 ' Farrow v. Bragg, 30 Ala. 261; ] Bell's Com. § 413, 4th ed. 
 
 X Nicolet's Admr. v. Pillot, 24 Wend. 240. The agent ought to be protected. See 
 Ilowr. V. Buffalo, N". Y. & E. R. R. Co., 37 N. Y. 297. 
 
 Ca ;-!i lay v. ^[cKensie, 4 Watts & Serg. 282; Carriger v. Whittington, 26 Mo. 313. 
 
Gkatuitotjs Commissions. 97 
 
 A power of sale, coupled with an interest in goods, capable of being 
 executed in the name of the agent, may be executed after the principal's 
 death ; as where a factor makes advances upon and receives goods for 
 sale, and is not reimbursed on the death of his principal.^ The factor 
 has an interest in the property, like that of pledgee, and a sale by him, 
 contemplated from the first, is only a reasonable mode of realizing his 
 interest in the goods. 
 
 An agency cannot outlive the principal ; ^ imder this rule of the com- 
 mon law it is evident that an agent or mandatary can only be protected 
 in such acts and dealings in the business entrusted to him as the situa- 
 tion naturally calls for. He must preserve the property and surrender 
 it to the parties entitled to receive it. * 
 
 § 118. A mandate may include an authority to contract; and as the 
 power is withdrawn by the death of the mandator, it is often necessary 
 to fix the precise time when the contract is complete. In a sale negoti- 
 ated by letter, the offer to sell, standing open and unretracted, becomes 
 a contract of sale as soon as it is accepted ; even though the person mak- 
 ing the offer die before he receives knowledge of the fact.' As in other 
 
 1 Edwards on Factors and Brokers, §§ 86, 87; Ish v. Crane, 8 Oliio St. .520; Story on 
 Agency, § 496. 
 
 2 Hunt T. Kousmanier, 8 Wheat. 174, 201; Smout v. Ilberry, 10 Mees. &Welsby, 1; 
 Megary v. Funtis, 5 Sand. 376; Park v. Hammond, 6 Taunt. 49.5. 
 
 3 Mactier v. Frith, 6 Wend. 103 ; Vassar v. Camp, 11 N. T. 441 ; Taylor v. Mer- 
 chants' Fire Ins. Co., 9 How. U. S. 370 ; Trevor v. Wood, 36 N". T. 307 ; Pothier, Trait 
 du Contrat de Vente, § 2, Art. 3, No. 32. The passage from Pothier is as follows : 
 In order that this consent may take place where the contracting parties are in differ- 
 ent places, it is necessary that the will of the party who has written to the other, pro- 
 posing a sale, should continue until his letter has reached the other party and he has 
 declared that he accepts the offer. This will is presumed to have continued, if nothing 
 appears to the contrary. But if I have written to a merchant at Livourne a letter 
 proposing to sell him a particular article for a specified price, and before my letter has 
 been received by him, I write to him a second declining to make the contract, or if 
 before that time (i. e., before my letter is received and the offer contained in it accepted) 
 I am dead, or have lost the use of my reason, although the merchant at Livourne, 
 ignorant of my change of will, death, or loss of reason, should, on receiving my letter, 
 accept the offer contained in it, there would be no contract of sale ; for my will not 
 having continued down to the time when this merchant had received my letter and 
 accepted the proposition contained therein, there was not that concurrence or meeting 
 of our minds required to make a contract of sale. This is the opinion of Bartholus 
 and of the other doctors of the civil law quoted by Bruneman, ad. I. 1, § 2, ff, de con- 
 trat empt, who have correctly rejected the contrary opinion of the commentary ad 
 dictam legem. This doctrine, says Mr. Justice Marcy, which presumes the continu- 
 ance of a willingness to contract, after it has been manifested by an offer, is not con- 
 fined to the civil law and the codes of those nations which have constructed their sys- 
 tems with the materials drawn from that exhaustless storehouse of jurisprudence ; it 
 is found in the common law ; indeed, it exists, of necessity, wherever the power to 
 
 7 
 
98 Law of Bailments. 
 
 cases, the contract is complete as soon as the minds of the parties meet. 
 Of necessity the person making the offer to sell by letter must be con- 
 sidered as making it during every instant of time his letter is passing to 
 its destination ; and if the party addressed presently or within a reason- 
 able time write a letter of acceptance and mail it, the contract is com- 
 plete. It is necessary that the minds of the contracting parties should 
 meet on the subject and terms of the contract, but not necessary they 
 should know that they meet m order to create the contract.^ The mail- 
 ing of the letter of acceptance properly addressed, or the sending of a 
 telegram where the offer is made by telegraph, completes the contract.^ 
 
 contract exists in parties separated from eacli other. (0 Wond. 11.5.) In Vassarv. 
 Camp, decided in the Court of Appeals in this State, Jlr. Justice Nelden observes : 
 Tliis precise question has been so fully considered in several modern cases, that it 
 would be a work of entire supererogation to discuss it here. It arose in England in 
 the case of Adams v. Lindsell (1 Barn, and Aid. C.Sl). In that case an offer to sell 
 wool was made through the mail. The offer was received by the plaintiffs on the 5th 
 of SeiJtember, who wrote and mailed their answer, accepting the offer, the same even- 
 ing ; but this answer was not received until the 9th of September by the defendants, 
 who in the meantime, supposing their offer had not been accepted, had sold the wool 
 to otherparties. The action was for the non-delivery of the wool ; and if the contract 
 was regarded as consummated on the 5th of September, when the answer accepting 
 the offer was mailed, the defendants were liable ; but if not until its receipt on the 
 9th, then no liability attached. The court held unanimously that the contract became 
 obligatory on the 5tli, when the answer of the plaintiffs was deposited in the mail. In 
 the case of Mactier v. Frith, the same question arose in this State, and was elaborately 
 discussed by our late Court of Errors. The court in that case, by an almost unani- 
 mous vote, affirmed the doctrine of Adams v. Lindsell, in opposition to that of Mc- 
 Culloch V. The Eagle Insurance Company (1 Pick. -!7S), in which the Supreme Court 
 of Massachusetts had adopted a different rule. The decision in Mactier v. Frith has 
 since been followed in our own State in the case of Brisban v. Boyd (4 Paige, 17); in 
 the State of Connecticut, in the case of Averill v. Hedge (12 Conn. 424) ; in Pennsyl- 
 vania, in the case of Hamilton v. Lycoming Ins. Co. (5 Barr. 3.39); and in Georgia, in 
 Levy V. Coke (4 Georgia R. 1). The question has again arisen in England, and been 
 passed upon by the House of Lords there, in the case of Dunlop v. Higgins (12 Jurist. 
 295). In that case, the case of Adams v. Lindsell is referred to and confirmed in the 
 niost decided and unequivocal terms. The doctrine of this case, therefore, and that 
 of Mactier v. Frith, must be considered as too firmly settled, both in this country and 
 in England, to be shaken or doubted. It is moreover maintained, in the cases referred 
 to, by the most satisfactory and conclusive reasoning. (1 Kernan P.. 446, 447.) 
 
 iMcCuUoch V. Eagle Ins. Co., 1 Pick. 278, is not followed. 
 
 2 Hunt V. Higman, 70 Iowa, 400 ; Ferrier v. Storer, 63 Iowa, 4S4; Bryant v. Boozee, 
 55 Ga. 438 ; Washburn v. Fletcher, 42 Wis. 152; Greer v. Chartiers E. E. Co., 90 Pa. 
 St. ••»!; Minnesota Oil Co. v. Collier Lead Co., 41)111. 431. The rule stated in the 
 text is supported by the cases above cited, subject to the qualification that the offer is 
 standing and the acceptance is made within a reasonable time. The party making the 
 offer has the right to impose the condition that the acceptance shall be receive 1 by 
 him within a time limited, or by return mail. Union Nat. Bank v. Miller, 106 N. C. 
 
Gratuitous Commissions. 99 
 
 There are certain qualifications of this rule: 1. Where the party sending 
 the offer retracts it by letter or by telegraph by a communication 
 reaching the party addressed before his letter of acceptance has been 
 written and mailed, an acceptance will not create a contract.^ 2. Where 
 the party receiving the offer does not write and post his letter of accept- 
 ance within a reasonable time, no contract will arise.^ 3. Delajs ;nd 
 miscarriages by mail do not prevent the completion of the contract ; 
 the post-office being the agent of both parties.'' The law relating to 
 contracts negotiated by telegraph or by mail is framed to promote the 
 convenience of the business community. 
 
 § 119. There are several ways in which the contract of mandate may 
 be terminated, so far as the right of control over the property is con- 
 cerned. If the mandator become insane or an habitual drunkard and a 
 guardian or committee be appointed of his person and estate, the right 
 of control must necessarily pass to the guardian or committee.* If a 
 feme sole mandator marry, the title to her goods and chattels passes 
 under the common law to her husband, and with it the right of control 
 •over them.* If the mandator become a bankrupt and his estate passes 
 into the hands of an assignee, the right to demand and receive it super- 
 sedes the authority under which the goods were delivered.^ A valid 
 assignment for the benefit of creditors must have the same effect as an 
 absolute sale. These several transfers operate upon the authority un- 
 der which the mandatary holds the goods ; in some instances they oper- 
 ate to convert the contract of mandate into a simple deposit, arresting 
 
 347; Lewis v. Browning, 130 Mass. 173; Maclay v. Harvey, 90 III. .525; Taylor v. 
 Kennie, 35 Barb. 272. If not so received there is no contract. Id. An offer sent by 
 telegraph invites or authorizes a reply by the same mode of communication. Trevor 
 V. Wood, supra ; In re Imperial Land Co. of Marseilles ; Wall' s Case, 5 English R. (Moak.) 
 686, and cases there cited. If a proposition is made by mail and an acceptance is for- 
 warded by a messenger, the contract will be complete at the time the acceptance is 
 delivered to the messenger to be carried, and not from the time of the delivery of the 
 acceptance to the proposer. Fox v. Turner, 1 III. App. 153. But the contract does not 
 become complete on the delivery of an acceptance to a third person to deposit in the 
 post-office. Maclay v. Harvey, 90 III. 525. 
 
 1 Taylor v. Merchants' Fire Ins. Co., 9 How. U. S. 370; Thompson v. James, 18 
 Dunlop, 1 ; School Directors v. Trefethreu, 10 111. App. 127. 
 
 2 Averill v. Hedge, 12 Conn. 424; Ferrier v. Storer, 63 Iowa, 484. 
 
 * Duncan v. Topham, 8 C. B. 225 ; Vassar v. Camp, supra; Thompson v. James, 
 supra. 
 
 * Wadsworth v. Sharpsteen, 8 N. T. 388; Leonard v. Leonard, 14 Pick. 283. 
 
 5 Udal V. Kenny, 3 Cowen, 590, 599. It is otherwise under the present law of this 
 Sta' e. (iage v. Dauchy, 34 N". T. 293. 
 
 '' Matter of Cook, 2 Story, 376; Exp. Newhall, 2 Story, 360; Merritt v. Forrester, 4 
 Taunt. 541; Parker v. Smith, 16 East, 382. 
 
100 Law op Bailments. 
 
 the object of the mandate, and leaving the mandatary still bound to 
 keep the property with ordinary care.^ 
 
 A seizure of the property under process against the mandator, with 
 notice to him, will operate to dissolve the contract. The mere insol- 
 vency of the mandatary, where the owner is willing to rely upon his. 
 fidelity, will not terminate the trust.^ 
 
 As the mandatary acts gratuitously, having no interest in the subject 
 of the bailment as against his principal, the mandator may at any time 
 revoke the mandate. He has a right to recall the trust and resume 
 possession of the property ; or he may transfer the property to another, 
 and with it the right of revocation.^ To make the revocation of the 
 trust effectual, notice must be given to the mandatary ; ^ but this may 
 be done by the appointment of another to relieve him of the trust.' 
 
 1 Tracy v. Wood, 3 Mason, 132. 
 
 2 Williams v. East India Co., 3 East, 192; Doorman v. Jentins, 3 Adolph. & Ellis, 80. 
 8 Hodges V. Hurd, 4'7 111. 363. 
 
 *Salt V. Field, 5 Term R. 215. 
 
 6 Copeland v. Mercantile Ins. Co., 6 Pick. 198. 
 
Geatuitous Loans. 101 
 
 CHAPTER IV. 
 
 GEATUITOUS LOANS. 
 
 § 120. A gratuitous loan of goods for temporary use, to be after- 
 "wards returned, creates a bailment ; the title does not pass. A loan of 
 •articles to be returned in kind, as money, corn, cattle, and other things 
 that may be valued by number, weight, or measure, is a contract of an- 
 other class ; it is a^ale. The absolute property is transferred to the 
 borrower ; the understanding of the parties is that he shall consume or 
 sell or otherwise appropriate it as his own.^ As in a loan of money, the 
 intention is that the borrower shall make use of it as his own, and the 
 law therefore treats it as his property. It is the mutuum of the civil 
 law ; a contract frequently adopted in connection with a lease of lands, 
 to enable the tenant to stock his farm and carry on the business with 
 a complete control over it. The contract was formerly much used in 
 Scotland, and the grain or cattle thus leased under a stipulation that 
 the like property in quantity and quality should be returned at the end 
 of the lease, were called steelbow goods.^ 
 
 § 121. A loan of things to be returned in kind resembles a loan for 
 a temporary and gratuitous use only in form ; there is no real simihtude 
 between the two contracts. But there is often a close resemblance be- 
 tween a bailment for hire and a sale : a delivery of wheat to a miller to 
 
 1 2 Kent' s Comm. 573, 574. In a loan or letting of cattle or sheep for a certain term, 
 at the expiration of which they are to be returned with others, we have a bailment : 
 in a loan of cattle or sheep under a contract giving the party receiving them the op- 
 tion to replace them with so many other cattle or sheep as good, we have a sale. Hurd 
 V. West, 7 Cowen, 752; Otis v. Wood, 3 Wend. 498. Contracts providing for an ex- 
 change of grain for flour (Smith v. Clark, 21 Wend. 88) ; or of logs for lumber (Pierce 
 V. Schenck, 3 Hill, 28) ; are familiar illustrations of the rule, and have been construed 
 as contracts of sale and not of bailment. See also, Bartlett v. Wheeler, 44 Barb. 162; 
 Weir V. Hill, 2 Lansing, 278; a rather speculative contract; Carpenter v. GriflBn, 9 
 Paige Ch. 310. A contract giving the right to consume the property may withhold the 
 title until it is consumed; Armington v. Houston, 38 Vt. 448; and there may be dif- 
 ferent interests or rights of property created in the same goods. Wood v. Orser, 25 
 N". Y. 348. 
 
 2 Carpenter v. GriflBn, 9 Paige Ch. 310; see Ives v. Hartley, 51 111. 520; and Loner- 
 gau V. Stewart, 55 111. 45 ; and Inglebright v. Hammond, 19 Ohio, 337 ; a loan of money, 
 see Chiles v. Garrison, 32 Mo. 475. 
 
102 Law of Bailments. 
 
 be ground and returned in the form of flour, five bushels of wheat for 
 one barrel of flour, is a bailment, where by the contract the miller is to 
 return the flour produced from the wheat delivered ; the title does not 
 pass ; it is an agreement for work and services. On the other hand, 
 an exchange of wheat for flour, under a contract which leaves the mil- 
 ler at liberty to dehver flour of a given quality, produced from any 
 wheat, is a double sale ; the title to the wheat passes on delivery, and 
 so does the title to the flour. The miller agrees to purchase the wheat 
 and sell the flour ; he is therefore bound to deliver the flour, though the 
 wheat be destroyed by fire before he is able to grind it.^ The distinc- 
 tion running through all the authorities is very simple and clear : when 
 the identical thing delivered is to be restored, though in an altered 
 form, the contract is one of bailment, and the title to the property is not 
 changed. But when there is no obligation to rest£)re the goods deliv- 
 ered, and the receiver is at liberty to return another thing of equal 
 value, he becomes a debtor to make the return, and the title to the 
 property is changed ; it is a sale.- 
 
 § 122. A loan of commercial paper, bills of exchange, promissory 
 notes, or other securities for the payment of money, often made by one 
 merchant to another for his accommodation, has but a slight resemblance 
 to a loan of goods or chattels for use. If a man make and deliver his 
 note to a friend without any restriction as to the manner in which it is 
 to be used, he authorizes him to negotiate it for any lawful purpose ; and 
 
 1 Norton v. Woodruff, 2 N. T. 153; Chase v. Washburn, 1 Ohio St. 244; Buffum v. 
 Merry, 3 Mason, 478; Ewing v. French, 1 Blackf. 353; South Australian Ins. Co. v. 
 Eandell, 6 Moore P. C. (X. S.) 341. Seymour v. Brown, 19 John. 44, is overruled. 
 Hurd V. West, 7 Cow. 752. 
 
 2 Mallory v. Willis, 4 N". T. 76; Hm-d v. West, 7 Cow. 52; Smith y. Clark, 21 Wend. 
 83; Bradley V. Mirick, 25 Hun, 272; Marsh v. Richards, 3 Hun, 550; Foster v. Petti- 
 bone, 7 N. Y. 433; Bufemn v. Merry, 3 Mason, 478; Barker v. Roberts, 3 Greenleaf, 
 101 ; Andrews v. Richmond, 34 Hun, 20. In Mallory v. Willis, supra, there was some 
 difference of opinion as to the interpretation of the contract. The wheat was de- 
 livered to be manufactured into flour, on certain terms, and the question was whethir 
 the flour was to be returned, or so much flom-. In Foster v. Pettiboue, 7 N". T. 4.;.;, 
 a similar question was passed upon, without any dissent upon the rule of law. So in 
 Wadsworth v. Allcot, 6 N. T. 64. In I\es v. Hartley, supra, it was held that a receipt 
 given by a warehouseman in these terms, " Received of H. 134 bushels of wheat left 
 in store, to take market price when he sees fit to sell," imports a sale. Westcott v. 
 Tilton, 1 Duer, 53; King v. Hnmplirey, 10 Ponn. 1 Barr, 217. See Andrews v. Rich- 
 mond, 34 Hun, 20; Irons v. Keutner, 51 Iowa, SS; Johnston v. Browne, 37 Iowa, 200; 
 Nelson v. Brown, 44 Iowa, 455; Ledyard v. Hibbard, 48 Mich. 421; Dean v. Lam- 
 mers, 63 Wis. 331. In the most of these cases the receipt given was construed in 
 connection with extrinsic evidence of the circumstances surrounding the individual 
 transaction and the usage known to the parties, and the character of the contract de- 
 termined from all the cvidenof. 
 
Gratuitous Loans. 103 
 
 he must pay the note to the holder when it becomes due.^ He loans 
 himself into a debt, unless the borrower pays the note as he ought to. 
 If a man make and loan his note to a friend to be used for a special pur- 
 pose, it is a breach of good faith to use it for any other purpose, and 
 for that reason no party taking the note with knowledge of its misap- 
 propriation, can recover on it against the maker. It being a negotiable 
 note, favored as a commercial instrument, a stranger who takes it 
 before it is due honestly for value, is allowed to recover on it notwith- 
 standing the misuse of the paper. In these cases the borrower, the 
 party accommodated, must indemnify the lender ; the law implies an 
 engagement on his part to do so.^ 
 
 § 123. A loan of goods or chattels for gratuitous use has all the ele- 
 ments of an ordinary contract, except one ; the use is a gratuity from 
 the lender. There cannot therefore be a valid executory contract of 
 this kind.' After a delivery of the property, the loan is treated as a 
 contract, though it must be conceded that in some features it closely 
 resembles a license to occupy and use real estate.' It confers on the 
 borrower a lawful possession, and it invests him with a special or qual- 
 ified property ; it is as truly a contract as that which is created where 
 goods are delivered to be kept or carried without compensation.^ It con- 
 cerns personal property only, and is distinguishable from a mere Ucense.' 
 
 § 124. A loan is not to be deemed gratuitous where it is made for the 
 mutual advantage of the lender and borrower ; as where the owner of a 
 horse has no present use for him, and lends him to another person to 
 be worked for his keeping ; ' or where chattels are loaned to the bor- 
 rower for a use which must enure directly to the benefit of the lender ;' 
 or where property is delivered to a party, with the option to purchase 
 and pay for it a certain price within a given time. A conditional deliv- 
 ery, with a view to a sale, operates to give the use for the term of the 
 credit agreed upon ; but it is not the same thing as a gratuitous loan.° 
 
 1 Edwards on Bills and Notes, 316-324. 
 
 2 Brown v. Taber, 5 Wend. 566; Wheeler v. Guild, 20 Pick. 545; Edwards on Bills 
 and Notes, 374. 
 
 8 Crosby v. German, 4 Wis. 3*73; Shillibeer v. Glyn, 2 Mees. and Wels. 145. 
 
 * 3 Kent's Comm. 452. A license is not assignable, and it is revokable. Crocker v. 
 Cowper, 1 Cromp. Mees. & Bos. 418; Morse v. Copeland, 2 Gray, 302; Pierrepont v. 
 Barnard, 6 N. Y. 279. 
 
 ^ McCauley v. Davidson, 10 Minn. 418. " All bailments, with or without compensa- 
 tion to the bailee, are founded on a sufficient consideration." 
 
 « Williams v. Jones, 3 H. & C. 256, 602. 
 
 f Chamberlain v. Cobb, 32 Iowa, 161. » Carpenter v. Branch, 13 Vt. 161. 
 
 9 Bailey v. Colby, 34 N. H. 29; Dunham v. Lee, 24 Vt. 432; Dunlap v. Gleeson, 16 
 Mich. 158; DeFonclear v. Shottenkirk, 3 John. 170; Harrison v. Marshall, 4 E. D. 
 Smith, 271. See Austin v. Dye, 46 N. T. 500. 
 
104 Law op Bailments. 
 
 § 125. The terms of the loan prescribe the use to be made of the 
 property, and the tune of that use. Whether expressed or implied, they 
 constitute the conditions of the trust upon which the goods are loaned. 
 That they are treated as conditions, rather than as the mere stipulations 
 of an ordmary contract, is evident from the consequences following a 
 breach of them. If a carriage be borrowed for a special use, or a horse 
 to go a particular journey, and they be used differently, it is a breach of 
 the trust under which they are loaned, and the borrower is liable for 
 any loss or injury to them, even by accident. E. g.^ if a horse be lent 
 to go to London, and he be driven towards Bath in another direction 
 the borrower becomes responsible for any casualties that may happen in 
 the journey towards Bath. Driving the horse beyond the place desig- 
 nated is held a conversion of the property, which will support the action 
 of trover.i 
 
 On a loan of a chattel for a given use for a day, a week, or a month, 
 there is an implied understanding that it shall be returned at the time 
 agreed upon ; and it has been held that a failure to return it is a con- 
 version of the property.- And though this ruling can scarcely be sup- 
 ported on sound principles,^ it is quite clear that a contiuued use of the 
 chattel after the time specified ought to be held a conversion ; on the 
 ground that such unauthorized use is a wrongful appropriation of the 
 property. A failure to fulfill a promise, express or implied, may be a 
 breach of contract; but the circumstances must be very peculiar, where 
 such a failure could be deemed a conversion. On the other hand, a 
 man who uses another's goods in violation of his instructions, and for 
 his own advantage, commits a tortious act.' 
 
 § 126. The parties to the contract of loan, as in other cases, must 
 have a legal capacity to make a contract. This is important to be borne 
 m mind, since it may affect materially the remedy of the lender, for 
 an injury to the chattel loaned, under a contract which cannot be en- 
 forced at law.= Thus, the contract of an infant is not void, but voidable 
 at his election. If a horse is lent to him to go a journey, there is an 
 implied promise that he will makes use of great care and diligence t.. 
 protect the animal from injury and return him at the time agreed upon. 
 But if he pleads his infancy, no action can be maintamed against him on 
 
 ^ 1 Coggs V. Bernard, 2 Ld. Eaym. 909, per Chief-.Justice Holt; Wheelock v. Wheel- 
 right, 5 Mass. .104. An unauthorized use of the animal is a conversion of him Col- 
 lins V. Bennett, 4(j N. Y. 490. 
 2 Clapp V. Nelson, 12 Texas, 370; Lay's Exr. y. Lawson's Admr., 2;J 11a :177 
 Eoss V. Clark, 27 Miss. Jones, 54!). 
 
 '^^"^T;.^- ^"'^^^'•'l- 2"^ N. H. 07; and Collins y.Bennetl, supra. See also, Went- 
 worth V. McDuffie, 4S N. H. 41 )2, 40S-a case of over-driving a hired horse 
 " Campbell v. Stakes, 2 Wend. E. 1:;7. 
 
Gkattjitous Loans. 105 
 
 this implied promise. If he should sell the horse, an action would lie, 
 and his infancy would not protect him ; ^ for that is an election on his 
 part to disafB.rm the contract. And so if he be guilty of any wilKul and 
 positive act of injury to the animal, an action of trespass lies against 
 him for the tort ; ^ though he is not answerable on his agreement for 
 injuries resulting through his unskillfulness, or want of knowledge and 
 discretion.^ The law releasing him from the binding force of his con- 
 tract is based on the presumption that he has not yet acquired those 
 very qualities of knowledge and discretion ; and consequently he cannot 
 be held responsible on his promise, express or implied, to exercise care 
 and diligence. He is liable for torts, not on matters arising ex coji- 
 tractuJ^ 
 
 § 127. Married women at common law have not a legal capacity to 
 contract ; but in respect to matters usually intrusted to her, the wife 
 may act as the agent of her husband ; in his absence, the wife is con- 
 sidered to have a general authority over his property, which must be 
 possessed by some one, unless it be expressly shown that he has con- 
 stituted some other person his agent for that purpose.^ If the husband 
 intrusts the wife with money to make deposits in some bank for safe 
 keeping, and she does so, opening an account in her own name, and 
 afterwards withdraws the money, it seems the court will presume she 
 acted with authority.^ But the contract is that of the husband, since 
 the wife cannot contract in her own name. A loan to her, unless it be 
 made with the authority of her husband, will not raise the usually 
 implied contract by the borrower, though if it have his assent it will be 
 the same as a loan to him. Her act with his assent binds him ; it is 
 his. The common law disabilities of married women having been 
 removed by statute in this State, and the wife having been given fuU 
 power to contract in her own behalf, much of the ancient lore in regard 
 to the contracts of husband and wife have become obsolete. In respect 
 
 1 Vasse V. Smith, 6 Cranch's Rep. 226. 
 
 2 Campbell v. Stakes, 2 Wend. 137; Eaton v. Hill, 50 N. H. 235. So if the infant 
 hires a horse to go to a particular place and goes in a different direction, or hires a 
 horse to go a fixed distance and goes beyftnd it, he is liable in tort. Homer v. Thwing, 
 3 Pick. 492; Towne v. Wiley, 28 Vt. 353; Wentworth v. McDuffie, 48 N. H. 402; Fish 
 v. Ferris, 5 Duer, 49. 
 
 s Jennings v. Randall, 8 Term R. 335; Green v. Greenbank, 4 Eng. Com. Law Rep. 
 377; 2 Marsh Rep. 485; Eaton v. Hill, 50 K. H. 235; Campbell v. Stakes, 2 Wend. 137. 
 
 * Homer v. Thwing, 3 Pick. 492; Hanks v. Deal, 3 McCord's Rep. 257; Bristow v. 
 Eastman, 1 Esq. Rep. 172; Wallace v. Morss, 5 Hill R. 391; Medbury v. Watrous, 7 
 HiU R. 110; Moore v. Eastman, 1 Hun, 578; Stud well v. Shapter, 54 N. Y. 249. 
 
 « Church V. Sanders, 10 Wend. R. 79. 
 
 SDacyv. The Chemical Bank, 2 Hill, 550; Miller v. Delamater, 12 Wend. 433; 
 Edgerton v. Thomas, 9 N. Y. 40. 
 
106 Law of Bailments. 
 
 to the other disabilities of parties, it is not necessary here to enter 
 further into the subject ; it is sufBcient to say, they are similar in all 
 contracts.^ In general, married women, under the common law, and 
 infants, lunatics, and other persons not sui juris, are not capable of 
 contracting, nor can they appoint an agent or attorney to act for them ; ^ 
 but infants and married women, as we have seen, may act as agents 
 for others.^ 
 
 A married woman may now take and hold a separate property the 
 same as if she were unmarried ; she may carry on business, and buy and 
 sell and mortgage her goods and chattels,* and she may with equal right 
 borrow and hold chattels to her own use, without subjecting her husband 
 to any liability on account of them. 
 
 § 128. The Borrower s Interest. Under a loan for use, the possession 
 and a transient special property are transferred for the time and use 
 agreed upon ; the borrower takes an interest in the things loaned — what 
 the law calls a special or qualified property. Pie acquires the possession 
 to which the law attaches the right to protect the property by action 
 against a wrong-doer. He has an interest in the custody and safety of 
 the property, because he is answerable for it to the lender ; and this pos- 
 sessory interest will enable him to maintain an action against any third 
 party who wrongfully hiterferes with the thing loaned.^ The borrower 
 is liable over on his contract to the lender ; this is the ground upon 
 which the law gives him his right of action against third parties. His 
 actual liability in a given case does not appear to be necessary ; it 
 need not be shown to enable him to maintain an action ; for there are 
 situations in which he would be entitled to recover, though not himself 
 chargeable with any breach of duty towards the lender.^ 
 
 1 Story on Bailm. § 229. 
 
 2 Snyder v. Sponable, 1 Hill's E. 567; Whitmarsh v. Hall, 3 Denio, 375; The People 
 V. Moores, 4 Denio, 518; Dominick v. Michael, 4 Sand. R. 37i!; Smith v. Oliphant, 2 
 Sand. E. 306-711; Crippen v. Culver, 13 Barb. S. C. 424. 
 
 3 Co. Lit. 52 a; Chastain v. Bowman, 1 Hill's South Car. E. 270; Eiley v. Suydam, 4 
 Barb. E. 222. 
 
 * Van Sickle v. Yan Sickle, 8 How. Pr. 205; Talman v. Hawkshurst, 4 Duer, 221; 
 Second Nat. Bank v. Miller, 63 X. T. 639; Jones v. Walker, 03 X. Y. 012; Laws lSfl2, 
 Chap. 594. 
 
 6 2 Black. Comm. 452, 453; Burton v. Hughes, 2 Biug. 173; Hurd v. West, 7 Cowen, 
 752; Nichols v. Bustard, 2 Cromp. Mees. & Eos. 659; Bliss v. Schaub, 48 Barb. 339; 
 Hendricks v. Decker, 35 Barb. 298; Duncan v. Spoar, 11 Wend. 54; Paddock v. Wmg, 
 16How.Pr. 547; Van Winkle V. The U. S. M. S. Co., 37 Barb. 122; Kissamv. Eoberts, 
 6 Bosw. 154; Chamberlain v. West, 37 Minn. 54. 
 
 " Kellogg V. Sweeney, 1 Lansing, 307 ; S. C. 40 X. Y. 291 ; Chamberlain v. West, 37 
 Minn. 54. In Kellogg v. Sweeney, supra, the bailee was a guest at .an inn and re- 
 covered from the innkeeper gold coin deposited with the clerk and subsequently stolen. 
 
Gratuitous Loans. 107 
 
 § 129. The possession of the borrower is not that of a mere servant, 
 and it does not exclude that of the owner, who may in most cases main- 
 tain an action for the conversion of the goods by a stranger ; and a 
 judgment obtained in his favor will be a good bar to a suit brought in 
 favor of the bailee. Either of them may bring the action, because the 
 bailee's possession is that of the owner, and possession under the right- 
 ful owner is sufficient against a person having no color of right.^ 
 When the bailee has no interest or claim to hold the goods, coupled with 
 his possession, the rule of law applies that the general property draws 
 after it the possession ; ^ so that the owner has the right of immediate 
 possession. 
 
 Without doubt the lender, who loans chattels for an indefinite time, 
 retains the constructive possession of them, and is entitled to reduce 
 the goods to actual possession at his pleasure ; ^ and it seems he has the 
 power by strict right at all times to revoke the loan,* and repossess 
 himself of the property which forms its subject. This right of revoca- 
 tion may in some cases work injustice towards the borrower, where he 
 has borrowed an article for a particular purpose, which remains unac- 
 complished at the period chosen by the lender to revoke the loan. Un- 
 der the Roman law and other codes derived from it, the lender was not 
 permitted to terminate the contract otherwise than as contemplated by 
 the parties to it.^ But at common law, it appears the borrower, like 
 the bailee under the contracts of mandate and deposit, has no legal in- 
 terest in the subject of the bailment as against the bailor. The lender, 
 having the general property in the loan, has the right to reduce it to his 
 actual possession whenever he pleases, and is therefore constructively 
 all the whUe in possession ; so that under the old practice he could sus- 
 tain the action of trespass de bonis asportatis.^ 
 
 Story intimates the opinion, that notwithstanding the lender's right to 
 
 The hirer of a horse is liable to the owner for injuries to the horse through the negli- 
 gence of the servants at an inn at which he is stopping. Hall v. Warner, 60 Barb. 198. 
 But liability on the part of the bailee to the bailor is not essential to the right of 
 the former to recover the value of the property from a stranger .who has converted it 
 or caused its loss through negligence. Chamberlain v. West, 37 Minn. 54. 
 
 1 Falkner v. Brown, 13 Wend. 68; 2 Saund. 47; Sutton v. Buck, 2 Taunt, 309; Bliss- 
 V. Schaub, 48 Barb. 339, 343. 
 
 2 Thorp V. Burling, 11 John. E. 285 ; Hall v. Tuttle, 2 Wend. 475. 
 
 8 Orser v. Storms, 9 Cowen E. 687; Smith v. Miles, 1 T. R. 480; Neff v. Thompson, 
 8 Barb. 213, 216; Pulliam v. Burlingame, 81 Mo. 111. 
 
 * 5 Bac. Ab. Tresp. (C), pi. 9, 16, 17 ; Putnam v. Wyley, 8 John. E. 433; 2 Camp. 
 B. 464; Story on Bailm. § 277. 
 
 * Story on Bailm. § 257. 
 
 «Rootv. Chandler, 10 Wend. R. 110; 7 Term E. 12; 3 Day, 498, 272; Herring v. 
 Hoppock, 15 N". T. 409, 412, 414; Ash v. Putnam, 1 Hill, 302, 306. 
 
108 Law of Bailments. 
 
 terminate the contract of loan whenever he pleases, still if he do so un- 
 reasonably, while the object of the bailment is but partly accomplished, 
 and actually occasions injury or loss to the borrower by so doing, the 
 latter may have a suit for damages ; or may recoup his damages in an 
 action brought against him for retaining the loan under such circum- 
 stances.^ As no authority is cited for this opinion, its weight must de- 
 pend entirely upon general principles. The owner of a pair of horses 
 lends them to his neighbor to carry a load of provisions to a particular 
 market ; can he, on the way, meet him and demand the immediate pos- 
 session of the team, leaving the borrower to sustain the injury resulting 
 from such an abrupt and unexpected termination of the loan ? ^ It may 
 in this case well be questioned whether the contract of loan for this 
 special purpose, united to the injury resulting to the borrower from its 
 termination before the purpose has been answered, will not justify the 
 borrower in resisting this demand for immediate possession, and be re- 
 ceived as an adequate defense. 
 
 § 130. Lender's Interest in the Loan. The title to the tiling lent, as 
 we have seen, remains in the owner ; the use only being transferred to 
 the borrower." The earlier writers speak of the borrower as havuig a 
 special or qualified property in the subject of the loan ; * more recently 
 it is asserted that he has no special property in the borrowed chattel' 
 But this variation of language does not show any variation of principle. 
 The bailee has an interest in the goods bailed, which, in the old action 
 of trover, was frequently spoken of as a special property, in contradis- 
 tmction from the naked possession held by a mere servant;" the mere 
 servant could not, while the bailee might maintain the action as against 
 strangers and wrong-doers.' Cowen, in speaking of the distinction be- 
 tween general and special property, says ; " Special property is where a 
 man holds goods by bailment, or has any temporary interest therein, 
 
 1 Story on Bailm. § 2.58. " The ground of this doctrine, as stated in the Koman 
 law, IS, that although it is purely a voluntary act to make the loan, and to prescribe 
 the terms thereof; yet when once it is made, the lender would, by an unreasonable 
 withdrawal of the loan, impose a biuden rather than a benefit, and thus violate the 
 implied obligation between the parties." The doctrine laid down by Story lias sub- 
 stantially been incorporated into the statutory law of California. See Cal Civil Code 
 § 1894. ' ' 
 
 2 Eoot V. Chandler, 10 Wend. R. 110; Bac. Abr. TtX. 
 8 2 Kent's Comm. 574. 
 
 * Doct. and Stud. D. 2 c. .aS; Bac. Abr. 873; 2 Black. Comm. 4.53 
 « 2 Kent's Comm, 574 ; Story on Bailm. §§ 279, 93-96, 1.50 ; Taylor v. Linday, 9 East 
 R. 49; Burton v. Hughes, 2 Bing. E. ns. 
 « Falkner v. Brown, 13 Wend. E. 63. 
 ' 2 Saund. 47; 1 East E. 244; 4 id. 247; Cro. Eliz. 819. 
 
Geattjitous Loaj<ts. 109 
 
 either in his own right and for his own use, or by authority of law for 
 legal purposes." ^ So, in Bacon's Abridgment, where a man lends sheep 
 or cattle, the borrower is said to have a qualified property in them, ac- 
 cording to the purposes for which the loan was made.^ 
 
 § 131. The general property is in the lender during the continuance 
 of the loan ; and the borrower, being responsible to his principal for the 
 goods intrusted to him, has an interest in them, by whatever term de- 
 scribed, sufficient to enable him to maintain an action for their protec- 
 tion against strangers, who wrongfully interfere with the goods.* Has 
 he any legal interest in them, as against the owner ? Under the Code 
 of Louisiana, the lender cannot take back the thing lent, till after the 
 time agreed on ; or, if no agreement is entered into in that respect, not 
 till after it has been employed in the use for which it was borrowed.* 
 This provision is clearly founded in good sense and sound reason. The 
 borrower has a right to rely upon the good faith of the lender ; and 
 where he receives a chattel for a specified use, and actually commences 
 to use it in the manner stipulated, it may occasion him a serious injury 
 to have it suddenly withdrawn, when the object of the loan is but half 
 accomplished. Such conduct in the lender is little less than a breach of 
 trust, and a breach of a trust undertaken voluntarily is a good ground 
 for an action.* The lender has promised the use of the chattel to the 
 borrower ; but the law demands a consideration to render the promise 
 valid; and that consideration must be either a benefit to the party 
 promising, or some trouble or prejudice to the party to whom the 
 promise is made.' In the case we have supposed, the borrower acts 
 upon the promise of the lender, receives the chattel, commences to use 
 it under the contract of loan, and will be injured by its withdrawal be- 
 fore the purpose of the loan has been fully accomplished. It should 
 seem that here is a valid contract binding upon the lender as well as 
 the borrower, and that the latter does in fact acquire a legal interest in 
 the subject of the loan, a qualified property in it, according to the pur- 
 pose for which it was borrowed.' 
 
 § 132. Story considers it a matter of serious doubt whether the deposi- 
 tary, the mandatary, or the borrower has any special property in the sub- 
 
 1 1 Cowen's Trea. 320, Sd ed. ; Heyl v. Burling, 1 Caines' R. 14. 
 2 Bac. Abr. 373. 
 
 ' Falkner v. Brown, 13 Wend. E. 63- Bliss v. Schaub, 48 Barb. 339, 343; Hays v. 
 Eiddle, 1 Sand. 248, 253. 
 
 * Code of Louisiana, Art. 2877. 
 
 * Coggs V. Barnard, 2 Lord Eaym. 
 " 1 Cowen's Trea. 58, 3d ed. 
 
 ' Doct. and Stud. D. 2 c, 38; Bac. Abr. 373; Story on Bailm. § 258. 
 
IIQ Law of Bailments. 
 
 ject of the trusts respectively committed to tliem,i and he reviews at 
 leno-th the authorities on the question, inclining to the opinion that the 
 general bailee has an interest, well expressed by the phrase, " possessory 
 hiterest," in the goods bailed, but not a special property. Blackstone, 
 speaking of the various classes of bailment, says -J "In all these in- 
 stances there is a special qualified property transferred from the bailor 
 to the bailee, together with the possession. It is not an absolute prop- 
 erty, because of his contract for restitution; the bailor having still left 
 in him the right to a chose in action, grounded upon such contract. And, 
 on account of this qualified property of the bailee, he may, as well as 
 the bailor, maintain an action against such as injure or take away those 
 chattels. The tailor, the carrier, the innkeeper, the agisting farmer, the 
 pawnbroker, the distrainor, and the gen^eral bailee may, all of them, vin- 
 dicate in their own right, this their possessory interest, against any 
 stranger or third person. For, being responsible to the bailor, if the 
 goods are lost or damaged by his willful default or gross negligence, or 
 if he do not deliver up the chattel on lawful demand, it is therefore 
 reasonable that he should have a right of action against all other per- 
 sons who may have purloined or injured them ; and that he may always 
 be ready to answer the call of the bailor." Sir Wilham Jones says : 
 " Every bailee has a temporary qualified property in the things, of which 
 possession is delivered to him by the bailor, and has, therefore, a posses- 
 sory action or an appeal in his own name against any stranger who may 
 damage or purloin them." ^ 
 
 Chancellor Kent, in speaking of the depositary, says : He has, per- 
 haps, strictly speaking, no property, general or special, in the article 
 deposited ; that he has only a naked custody or possession, with a right 
 of action, if his possession be unlawfully disturbed, or the property in- 
 jured.* Treating of the loan for use, he says : " The borrower has no 
 special property in the thing loaned, though his possession is sufficient 
 for him to protect it by an action of trespass or trover, against a wrong- 
 doer." '^ Afterwards he states the doctrine in the prevailing language of 
 the books : " As every bailee is in the lawful possession of the subject 
 of the bailment, and may justly be considered, notwithstanding all the 
 nice criticism to the contrary, as having a special or qualified property 
 in it ; and as he is responsible to the bailor in a greater or less degree 
 
 1 Story on Bailm. § 93. 
 - 2 Black Comm. 453; 13 Eep. 69. 
 
 5 Jones on Bailm. 80; Year B. 21; Hen. VII. 14 b, 15 a. 
 ■'2 Kent's Comm. 568. 
 
 ° Burton v. Hughes, 2 Bing. Eep. 173 ; Hurd v. West, 7 Cowen R. 752 : 2 Kent's 
 Comm. 574; Little v. Fossett, 34 Me. 545; Magee y. Toland, 8 Port. 3". 
 
Geatuitous Loans. Ill 
 
 for the custody of it ; he, as well as the bailor, may have an action 
 against a third person for an injury to the thing ; and he that begins the 
 action has the preference ; and a judgment obtained by one of them is a 
 good bar to the action of the other." ^ 
 
 § 133. "Where no time is limited for the continuance of the loan, the 
 lender has undoubtedly title, and a right to repossess himself of the 
 chattels bailed at any time ; the borrower having no right whatever 
 over the chattels as against the lender.^ The lender has not in such a 
 case the actual, but the constructive possession, which follows the title, 
 and which exists wherever he has the right to reduce the property to 
 actual possession at any time.' This he cannot have where he has 
 transferred to the bailee by a valid contract a right for a specified term 
 to the use of the goods bailed ; because in that case he is not entitled to 
 reduce the goods to his possession when he pleases.^ 
 
 The question whether the borrower under a loan for a definite time 
 or use can have a legal interest as against the lender, is rather specula- 
 tive, and it does not appear to have been directly passed upon ; though 
 in an early case it was assumed in argument that a loan for a definite 
 time gives the borrower an interest in the chattel during that time.^ 
 There is here by common consent a contract of loan between the parties, 
 embracing mutual promises, expressed or implied, from the circum- 
 stances ; and where the borrower takes action upon the faith of the loan, 
 the lender ought not to recall the property until the time or purpose of 
 the loan has been fulfilled, to the injury of the borrower.'' On the other 
 hand, a loan made without any specification as to time or purpose, is 
 but a bare license or authority which may be recalled at any time.' 
 
 1 Flewellin v. Eave, 1 Bulst. Rep. 68; Booth v. Wilson, 1 Bamw. and Aid. 59; 2 
 Kent's Conrm. 585. In a somewliat recent case the facts were as follows : A brother, 
 owning an oil painting, a family heirloom, loaned it to his sister to be kept by her 
 until called for. A carrier injured it in carriage ; and it was held that the sister could 
 not sue for the injury, the right of action being in the brother. Lockhart v. Western 
 & Atlantic R. R. Co., 73 Ga. 472. 
 
 2 Orser v. Storms, 9 Cowen's E. 687; Pulliam v. Burlingame, 81 Mo. 111. 
 ' Putnam v. Wyley, 8 John. R. 433. 
 
 * Hoyt V. Gelston, 13 John. E. 142 and 561 ; Aiken v. Buck, 1 Wend. R. 466. 
 
 5 Bringloe v. Morrice, 1 Mod. R. 210; Viner's Abr. Bailment D. ; Bac. Abr. Bailment 
 D.; Cro. Jac. 687; 2 Roll. E. 440; 1 Strange, 165; Taylor v. Linday, 9 East, 49. 
 « McGehee v. Mahone, 1 Ala. Select Cases, 212; Code of Louisiana, Art. 2877, 2878. 
 
 * Sheppard's Epitome, Countermand. 
 
 Root V. Chandler, 10 Wend. 110. In Root v. Chandler, it was held that the lender 
 has a constructive possession of the thing loaned; but it appeared in that case that 
 the borrower had exceeded his authority in the use of the chattel bailed ; the plaintiff 
 lent a pah- of horses to Evan Rice and Stephen Goss, to enable them to retail a load 
 of flsh. The horses were lent at Buffalo, and the borrowers had permission to proceed 
 
112 Law op Bailments. 
 
 § 134. The right of countermand exists in respect to a license, per- 
 mission, trust, agency or authority, in wliicli the agent or bailee acquires 
 no legal interest. If one gives money to another to pay over to a third 
 person in discharge of a debt, the cestui que use may recover it in an 
 action of debt or account against the bailee ; but if the money were 
 delivered to the bailee to hand to a third person, to whom nothing Avas 
 due, the owner has a right to countermand the authority at any moment 
 before it is executed.^ In like manner, a delivery of goods to A, to the 
 use of B, upon a precedent consideration, may not be countermanded, 
 because it vests the absolute property in B ; it being for his benefit, his 
 acceptance is presumed even before it be actually manifested.^ • A person 
 delivering money to another for a charitable purpose may countermand 
 the authority so long as the money remains in the hands of the bailee, 
 unappropriated according to the purposes of the trust.'' Indeed, if the 
 power or authority be in its nature legally revocable, it seems that it 
 cannot be rendered irrevocable by any act or stipulation on the part of 
 him wli( 1 grants it. So long as it is a mere license or authority, granted 
 as a matter of ease, pleasure or trust for the benefit of the bailor, it 
 may be countermanded.* If the owner of goods deliver them to a bailee 
 to be delivered over to a third person, the bailee has no property in 
 them except for the purpose of trust.^ But if the bailment is not on a 
 legal or valuable consideration, the delivery is countermandable ;' and 
 in that case, if the bailor bring an action in the nature of trover, he 
 reduces the property again in himself, for the action amounts to a 
 countermand of the gift ; but if the delivery be on a valuable or legal 
 consideration, the bailor cannot maintain his action because he has not 
 the right of immediate possession ; he has, for the time being, parted 
 with an interest in it." 
 
 east as far as Clarence, in the county of Erie; but one of them went as far as Batavia, 
 in the county of Genesee, where the horses were seized by the defendant's direction 
 on an execution against Eice. The action was trespass de bonis asportatis, and on 
 the trial a verdict was rendered for plaintiff. One of the questions raised on a motion 
 for a new trial was, whether the plaintiff had a sufficient possession to maintain tres- 
 pass; and upon this question the court say : "The plaintiff had the general property 
 in the horses; he lent them to Rice to go to Clarence, but no farther; he had a right 
 to reduce the property to his actual possession whenever he pleased; he was therefore 
 constructively in possession, and the action on that ground is well sustained." 
 
 1 Peter Harris v. Peter de Bervoir, C^ro. Jac. 687. 
 
 2 Atkin V. Berwick, 1 Strange, 16.5. 
 " Taylor v. Linday, 9 East, 49. 
 
 * Sheppard's Epitome, Countermand. 
 5 Roll. Abr. 606. 
 
 « Bulst. 68; -2 Leon, .30; Telv. IG4. Many of the earlier adjudications on the subject 
 of bailments were made in the old action of detinue, in which it was held a good plea, 
 
Gratuitous Loans. 113 
 
 § 135. Degree of Care and Diligence. Under a gratuitous loan for 
 use, the benefit being all on one side, the borrower is bound to use ex- 
 traordinary diligence in preserving the borrowed chattels : he is bound 
 to exercise all the care and diligence which the most careful and vigilant 
 men employ in their own affairs ; and he is responsible for even slight 
 negligence, whereby the property is lost or injured. The omission of 
 the most exact and scrupulous caution, or any want of prudence, is re- 
 garded as a culpable neglect in the borrower.^ 
 
 that the bailment was upon a condition. Viner Abr. D. Rich v. Aldred was an action 
 in detinue for the recovery of a picture of Oliver Cromwell, and Chief-.Justice Holt, at 
 the trial, illustrated the doctrine thus : If A bail the goods of C to B, and C bring 
 detinue against B for them, B may plead the bailment to him by A to be redelivered 
 to A, and so bring in A as garnishee to interplead with C ; and if A bail goo Js to C 
 and afterwards give his whole right in them to B, B cannot maintain detinue for them 
 against C, because the special property that C acquires by the bailment is n"ot thereby 
 transferred to B. 6 Mod. R. 216. 
 
 1 Scranton v. Baxter, 4 Sand. R. 5; cited in Moore v. Westervelt, 27 N. Y. 234, 243; 
 Howard v. Babcock, 21 111. 2o9; Bennett v. O'Brien, 37 111. 250; Ross v. Clark, 27 
 Mo. (6 Jones) 549; Green v. HoUingsworth, 5 Dana (Ky.), 173; Fortune v. Harris, 6 
 Jones (N. C), 532; Wood v. McClure, 7 Ind. 155; ante, § 5. See Cal. Civil Code, 
 §§ 1886-1889. 
 
 Lord Holt, in Coggs v. Bernard, states the doctrine on this point thus : The bor- 
 rower is bound to the strictest care and diligence to keep the goods, so as to restore 
 them back again to the lender, because the bailee has a benefit by the use of them, so 
 as If the bailee be guilty of the least neglect, he will be answerable. 2 Ld. Raymd. 
 909, 916. It is to be noticed that he states the liability of the bailee for hire, in terms 
 quite as strong, holding that he also is botmd to the utmost diligence, such as tlie 
 most diligent father of a family uses. Mr. Justice Blackstone also classes these two 
 kinds of bailment together, and describes them in nearly the same words, but evi- 
 dently without any intention of stating accurately the degree of care demanded in each. 
 Sir William Jones notices this similarity of language, used in reference to contracts 
 quite dissimilar, and contends that Chief- Justice Holt was misled by Bracton, on 
 whose authority he relied ; that the language of Bracton is copied exactly from Jus- 
 tinian ; that Justinian states in the proem to his Institutes, that his decisions on that 
 work were extracted principally from the commentaries of Gains ; and that the epithet 
 dilligentissimus, which comes down through Bracton, is in fact used by that ancient 
 lawyer, and by him alone, on the subject of hiring. Jones on Bailm. 86, 87. Sir 
 William mentions that Gaius is remarked for writing with energy, and for being fond 
 of using superlatives where all other writers are satisfied with positives; certainly if 
 this view, which is very plausible, be correct, it must be admitted that the energetic 
 Gaius has succeeded in prolonging the emphasis of that word through an unusual 
 lapse of time. It is, however, plain that the use of the word diWjens in the place of 
 dilligentissimus, in the passage quoted, will alter its entire meaning, so as to make it 
 conform to the doctrine as now settled, which demands of the bailee for hire only the 
 ordinary care which diligent men take of their own goods. Jones on Bailm. 87. But 
 the borrower, who alone receives benefit from the loan, is bound to the use of ex- 
 traordinary care, such as the most diligent and prudent men use in securing their own 
 goods. 
 
 8 
 
114 Law of Bailments. 
 
 The borrower does not insure the safety of the goods ; and he is not 
 liable for them, where he keeps and uses them with due care, and in the 
 manner permitted by the terms of the loan ; ^ he is not liable where the 
 chattel dies, or is stolen, or is destroyed by fire, without any negUgence 
 on his part.- The risk of losses like these abides with the owner, unless 
 the bailee has failed in his duty to anticipate and guard against the 
 danger. 
 
 The nature of the property must be considered, as in other cases, La 
 determining the kind of care for which the boir(iA\-cr is answerable. 
 For though the law exacts the same degree .if eare over all borrowed 
 goods and chattels, it is evident that a different kind of ^-igilance must 
 be empli lyed in the use of a horse, a watch, a book, or a sleigh. The ordin- 
 ary mode of using the chattel, the attention required in keeping it, and 
 the dangers to which it is naturally exposed, usually indicate the man- 
 ner in which it should be guarded and preserved. 7^". //., in the safe- 
 keeping of a carriage, the borrower must take reasonable care to house 
 it in a safe building ; " and in the keeping of a horse he will be justified 
 in stabling or turning him out to pasture ; according to the custom of 
 the place ; and he will not be held liable for an injury to the horse, 
 arising from a fall on a hillside or sloping field, used as a common 
 pasture.* 
 
 § 136. The borrower of a horse may not be liable for the want of rea- 
 sonable intelligence and skill ; and it has been asserted that the lender 
 who knows perfectly his uiexperience and incapacity must be content 
 with that degree of care and skill actually possessed by the borrower. 
 And it is clear that a man who lends a horse to a minor cannot recover 
 against him in an action grounded on the contract ; nor in an action of 
 tort, without showing some positive or tortious misuse or misappro- 
 priation of the property.^ With this exception the borrower of a 
 horse is certainly bound for the exercise of reasonable care and skill in 
 
 1 Camoys v. Scurr, 9 Carr & Payne, 38.3. See Hard v. Neaving, 44 Barb. 472, 488; 
 S. C. reversed on other grounds, .".5 N. T. 302; Beller v. Schultz, 44 Mich. 529. 
 
 2 Wood T. McClure, 7 Ind. 155; Millon v. Salisbury, a, case of hiring, 13 John. R. 
 211; Hyland v. Paul, 33 Barb. 241, 245; Chitty on Contracts, ed. of 1851, p. 630, note. 
 A borrower of a horse under an agreement to return it in good condition, or if by 
 reason of accident or otherwise he should fail to do so, to pay its value, is not liable 
 for such value on the death of the horse while in his possession, in the absence of any 
 evidence tending to show negligence or fault on his part. Whitehead v. Vanderbilt, 
 10 Daly, 214. But see Harvey v. Murray, 136 Mass. 377. 
 
 3 Searle v. Laverick, 22 W. Pi. 367; L. E. 9 Q. B. 122; a case of hire, justifying the 
 statement in the text. See also, Moulton v. Phillips, 10 K. I. 218; S. C. 14 Am. K. 
 663. 
 
 * Fortune v. Harris, 6 Jones Law (N. C), 532. s Ante, § 50. 
 
Geattjitous Loans. 115 . 
 
 driving and feeding and watering liim. He is without any question 
 bound for the exercise of as much intelligence and discretion as a bailee 
 for hire.^ 
 
 We have seen that a depositary or mandatary may be held liable for 
 a loss of money entrusted to him, though he take the same care of it as 
 he does of his own, where it is shown to have been lost through his 
 gross negligence.^ To lessen the borrower's responsibility below the 
 rule fixed by law, it would be necessary, it should seem, to show a state 
 of facts from which it might reasonably be left to the jury to find a 
 special contract to that eflEect. The loan is usually an act of friendship, 
 and the lender knows both the borrower's character and how the thing 
 loaned is to be used ; and where a man lends a horse to a friend, whose 
 mode of driving he is well acquainted with, to be harnessed with an- 
 other and driven to a place named within a given time, it may fairly be 
 presumed as matter of fact that the lender agreed to assume the risks 
 attending the use contemplated." 
 
 § 137. The civil law, which is quoted to show that the character of 
 the borrower, being known to the lender as that of a careless or rash 
 man, wUl lessen his liability, makes distinctions not recognized under the 
 common law.* Thus the Code of Louisiana lays it down as the general 
 principle, that the depositary is bound to use the same diligence in pre- 
 serving the deposit as he uses in preservuig his own property ; ^ and 
 then provides that the principle shall be enforced rigorously where the 
 deposit has been made at the depositary's request, where he is to have a 
 reward, where it is solely for his advantage, or where it has been agreed 
 that he should be answerable for all neglects. The same principle is 
 here applied to the depositary in all cases, only in some it is enforced 
 with greater rigor ; it being left to the discretion of the court to deter- 
 mine when the circumstances of the case dispense with or demand 
 severity in its application. 
 
 1 Mooers v. Larry, 15 Gray (Mass.), 451; Eastman v. Sanborn, 3 Allen (Mass.), 594. 
 Under the California Code, one who borrows a living animal for use must treat it 
 with great kindness and provide everything necessary and suitable for it. Cal. 
 Civil Code, § 1887. And a borrower for use is bound to have and to exercise such skill 
 in the care of the thing lent as he causes the lender to believe him to possess. Id. § 
 1838. 
 
 2 Tracy v. Wood, 3 Mason, 132; 2 Kent's Comm. 562. 
 
 ^ The court would hardly raise such a presumption as a matter of law. Conway 
 Bank v. Amer. Ex. Co., 8 Allen, 512; Eastman v. Patterson, 38 Vt. 146; but see 
 Knowles v. A. & St. L. K. E. Co., 38 Maine, 55. 
 
 * Kent's Comm. 574; Jones on Bailm. 46-65. See Cal. Civil Code, § 1888. 
 
 *Code of Louisiana, Art. 2908 and 2909. The edition quoted in these notes is that 
 erf 1838, with annotations by Wheelock S. Upton, LL. B., and Needier E. Jennings, 
 
,116 Law of Bailments. 
 
 The spirit of the common law is very different ; under it the jury- 
 make the application of the principles, announced by the court, to the 
 facts estabUshed on the trial ; and the principles of law are not said to 
 be enforced leniently or rigorously according to circumstances.^ The 
 facts proven may bring the case under one or another principle of law, 
 but we do not speak of the court as growing lenient or rigorous in its 
 enforcement, nor of the prmciple as capable of adjusting itself to a slid- 
 ing scale of care or neglect. 
 
 § 137a. Where goods are lent for a use in which the lender has a com- 
 mon interest with the borrower, as in other bailments reciprocally ad- 
 vantageous, the bailee is responsible for only ordinary negligence, and 
 is liable for their return in the same manner as a bailee for hire ; for 
 this is not properly a loan.^ Consistently with this prmciple, it must 
 be decided that where goods are lent for the sole advantage of the lender 
 the obligations and duty of the borrower must be modified and reduced 
 to the standard of those exacted of a depositary without reward. So 
 it is not the case of a loan, where a person rides a horse gratuitously at 
 the owner's request, for the purpose of showing him for sale ; and the 
 rider being skilled in the management of horses, is bound to use such 
 skill as he actually possesses." 
 
 § 138. The Loan, how used. The loan must be used strictly for the 
 purpose and in the manner contemplated by the parties. Many exam- 
 ples are put by way of illustration. If Wendell lend his jewels to 
 Charles, to be worn by him at a masked ball on a certain evening, the 
 use must be confined to that particular occasion ; and if on the way to 
 and from the place where the ball is held, the borrower be robbed of 
 them at the usual time of gomg and returning, he vdW not be answer- 
 able for their value ; but if he go from the ball to a gaming house with 
 the jewels, he will be responsible if he lose them there by any casualty 
 whatever. Lord Holt puts a case to the same effect : If a man lends 
 another a horse to go westward, or for a montli, and the bailee goes 
 northward, or keep the horse above a month, the bailee will be charge- 
 able, if any accident happens on the northern journey, or after the ex- 
 piration of the month, because he has made use of the horse contrary to 
 the trust he was lent to him under, and it may be that if the horse had 
 been used no otherwise than he was lent, the accident would not have 
 befallen him.* 
 
 1 Jones on Bailm. 118, 119, 120. 
 
 2 Carpenter ^ . Branch, 1.3 Vt. 161 ; Jones on Bailm. 72, 73. 
 = Wilson V. Brett, 11 Mees. ^t Welsby, 113. 
 
 *Coggs V. Bernard, 2 Ld. Raym. 900; Jones on Bailm. 09; Bucliannan v. Smith, 10 
 Hun, 474. This rule of liability is always enforced where a chattel is hired for use. 
 
GiiATuiTous Loans. 117" 
 
 The understanding on whicli the loan is made limits the right to use 
 the property ; so that any other use of the chattel, in excess of the 
 privilege or license granted to the bailee, is tortious and wrongful. If 
 a man borrow a horse for his own use, he has no right to permit his 
 servant to ride him ; the loan being in this case a strictly personal 
 favor.^ If the loan be made in general terms, without either express or 
 imphed limitation as to the manner of using the horse, the borrower 
 may allow his servant or any competent person to drive or use him, for 
 his accommodation ; ^ but would not be at liberty to loan or let the ani- 
 mal to another party.' And where, under the terms of the loan, the 
 bailee is free to use or drive the horse by his agent or servant, he is 
 responsible for the same degree of care as if he handled or drove the 
 Jiorse himself.* 
 
 § 139. If a man borrow a horse and cutter, or a horse and wagon 
 having a seat for two, he may take in a friend to ride with him, unless 
 there be something to prevent it in the terms of the loan ; because an 
 implied understanding has the same effect upon the rights of the par- 
 ties as an authority given in express words.'' Both parties are bound 
 by the agreement ; if a horse be lent to go to a particular place, and the 
 bailee go beyond or go to other places in a different direction, this is a 
 secret and fallacious use of the property, which amounts to a conver- 
 sion of it ; ^ it is said to render him liable for all accidents and injuries 
 befalling the chattel during such unauthorized use ; in strict law such 
 use is itself a conversion.' 
 
 Notes and bills of exchange are frequently made and indorsed merely 
 for the accommodation of a friend, as a substitute for a loan of money ; 
 and where they are made or indorsed for a special purpose, they must 
 be used in accordance with the understanding of the parties. The ac- 
 
 See Fox v. Toimg, 22 Mo. App. 386; Malone v. Eobinson, 77 Ga. 719; Collins v. Ben- 
 nett, 46 N. T. 490. The borrower of a tMng for use may use it for such purposes 
 only as the lender might reasonably anticipate at the time of the lending. Cal. Civil 
 Code, § 1890. 
 
 iBringloe v. Morrice, 1 Mod. 11. 210; 2 Kent's Comm. 574. 
 
 ^Camroys v. Scurr, 9 Carr. & P. (38 Eng. C. L. Kep.) 383. 
 
 8 Wilcox v. Hogan, 5 Ind. 546; Sargent v. Blunt, 16 John. E. 74, 76. 
 
 *Hall V. Warner, 60 Barb. 198; Seranton v. Baxter, 4 Sand. 9. As to the care re- 
 quired of a hired driver, see Kewton v. Pope, 1 Cowen, 109. 
 
 5 Harrington v. Snyder, 3 Barb. 380, 384. See Ray v. Tubbs, 50 Vt. 688. 
 
 ^Bac. Abr. 374; EoU. Eep. 128. This is undoubtedly the rule where there is a con- 
 tract of hiring. Fish v. Ferris, 5 Duer, 49 ; Lucas v. Trumball, 15 Gray, 306; Disbrow 
 V. Ten Broeck, 4 E. D. Smith, 397; Freeman v. Boland, 14 E. I. 39. If a person bor- 
 rows a carriage to go to a particular place and sends it heavily loaded to another place, 
 he is guilty of a conversion. Hart v. Skinner, 16 Vt. 138. 
 
 'Fish V. Ferris, 5 Duer, 49; Sargent v. Blunt, 16 John. E. 74. 
 
ll,s Law or Bailmknts. 
 
 commodation maker or indorser, in effect, loans his credit and liability 
 to the person for whose benefit he makes or indorses the note or bill of 
 exchange ; " but if the note or bill, being negotiable, is transferred to a 
 lonafide holder for value, the maker or indorser will be liable, notwith- 
 standing the violation of the trust under M'hich the note or bill was 
 made or indorsed. ^Vs between the parties to the transactii m, however, 
 the loan is governed by the same general principles as regulate the loan 
 of chattels. 
 
 § 140. The contract of loan cannot be violated with impunity ; the 
 bailee for hire is confined to the use for which he stipulates ; and there 
 is still greater reason for restrammg the borrower within the Umits of 
 the authority conferred upon him.^ "When the loan is made in general 
 terms, the lent chattel must be used only in the manner for which it is 
 fitted by its nature ; " if a riding horse be loaned for an afternoon, the 
 fair presumption is that the borrower will use him under the saddle. 
 In former times the loan of a slave, made in general terms, implied an 
 authority to use him as a servant, to go on errands ; and the borrower 
 was not held liable for him when he forgot to return.* 
 
 A loan for a certain time, as where a horse is loaned for a week or a 
 month, or indefinitely, for his keeping, gives the borrower considerable 
 discretion ; it will authorize a general use of the animal, by himself or 
 his servant ; ^ but when no time is specified, the loan of a chattel of this 
 nature is regarded as a personal trust reposed in the borrower, and not 
 transferable ; certainly it must be so regarded, unless the terms or cir- 
 cumstances of the loan be such as to authorize a greater freedom in the 
 use of the chattel.^ 
 
 § 141. The character of the loan is a matter of fact. Prima facie 
 the lender is understood to loan the chattels for the personal benefit of 
 the borrower in whom he reposes a special trust ; it is a contract in 
 which the borrower engages to bestow his personal care and diligence 
 in the preservation of the thing loaned ; especially where the chattel 
 naturally requires skillful treatment.' Of course the understanding of 
 
 U Cowen's Trea. 200, 201, 3d ed. 
 
 ^Disbrow v. Ten Broeek, 4 E. D. Smith, 497; Scranton v. Baxter, supra, and Har- 
 rington V. Snyder, supra. 
 
 ^ Code Louisiana, Art. 2869. 
 
 * De Fonclear v. Sliottenkirk, 3 John. R. 169. 
 
 'Chamberlain v. Cobb. 32 Iowa, 161; Camroys v. Scurr, 9 Carr. c^;- r. 383. 
 
 "Bringloe v. Morrice, 1 Mod. E. 210; S. C. 3 Salk. Ta. 
 
 'Bringloe v. Morri.e was an action of trespass for immoderately riding plaintiffs 
 mare; the defendant pleaded that the mare was lent to him, and that by virtue of the 
 implied license, he and his servant had alternately rode her. To this plea there was 
 a demurrer by the plaintiff; and the court held that the license for the use of the 
 
Geatititous Loans. 119 
 
 the parties will control the implied contract ; and this understanding 
 is to be ascertained from all that was said and done at the time the 
 loan was made, the same as in proving a verbal contract of hiring or 
 sale.* If the object of the loan be named, the implication is that the 
 borrower will not depart from it or go beyond the reasonable scope of 
 his authority. 
 
 § 142. Expenses of the Loan. Under the Code of Louisiana, the 
 borrower bears the expenses incident to the use of the thing loaned ; 
 but where he is obliged, for the preservation of the property, to go to 
 some extraordinary expense, necessary and so urgent that he cannot 
 give the lender notice of the same, he is entitled to be reimbursed ; the 
 lender must bear expenses of this kind.'^ 
 
 The common law is not different ; the borrower must bear the ordi- 
 nary^expenses incident to the use of the loan, or necessary to its due 
 preservation. No reasonable doubt can arise upon this point. The bor- 
 rower of chattels, whether cattle or slaves, takes upon himself the bur- 
 den of keeping and taking care of them ; since this is necessary to the 
 use of the loan.* And though this expense, paid by the borrower, does 
 save the owner the cost of keeping, and is so far an advantage to him, 
 the loan is nevertheless regarded as a gratuitous bailment. The inci- 
 dental advantage is not the compensation necessary to convert the bail- 
 ment into one of hire.* 
 
 Where extraordinary expenses, such as could not be anticipated by 
 the parties, become necessary for the preservation of the property, the 
 lender is answerable for them ; in an emergency which brooks no delay, 
 the bailee, having no opportunity to communicate with the lender, may 
 incur the necessary and reasonable expenses to preserve the property, 
 
 chattel was annexed to the person of the defendant, and could not be communicated 
 to another; for this riding was a matter of pleasure. Chief- Justice Korth took a dif- 
 ference where a certain time is limited for the loan of the horse, and where it was not. 
 In the first case the party to whom the horse is lent has an interest in the horse dur- 
 ing that time, and in that case his servant may ride, but in the other case he may not. 
 He also took a difference between hiring and borrowing a horse to go to York; in the 
 first, the party may permit his servant to ride, or use the animal, not in the second. 
 Mod. E. 210; S. C. 3 Salk. 271. 
 
 1 Pierson v. Hoag, 47 Barb. 244. " The law regard eth the intent of the parties, and 
 will imply their words thereunto." 
 
 ^ Code of Louisiana, Art. 2875, 2879. The California Code is to the same effect. 
 Cal. Civil Code, § 1892. 
 
 ' The hirer bears the ordinary expense of keeping a chattel. Harrington v. Snyder, 
 3 Barb. 380. 
 
 * Bennett v. O'Brien, 37111. 250. A different rule in regard to the nature of the 
 bailment was held in Iowa, where the owner of a horse having no use for him, loaned 
 him for his keep. Chamberlain v. Cobb, 32 Iowa, 161. 
 
120 Law of Bailments. 
 
 on the credit of the lender. If a horse, the subject of the bailment, 
 suddenly fall sick or is injured, the bailee, bound to take the greiitest 
 care of the property, may retain a farrier on the owner's credit, or leave 
 the animal at a hotel for proper care and treatment.^ His situation is 
 analogous to that of the master of a ship disabled m a foreign port, 
 unable to communicate with his principals and bound to do wlaat he 
 can promptly to protect the interests entrusted to his care.^ His right- 
 ful power must be as broad as his legal duty : he may therefore, it 
 seems, bind the owner for all necessary and reasonable expenses in the 
 preservation of the property beyond those arising in its ordinary use. 
 In the emergency, he may act for the owner and do what is necessary 
 to be done promptly, on behalf of the owner. 
 
 § 143. Fraud in Procuring the. Loan. Any misrepresentation, or 
 suppression of the truth which ought to be told, is fraudulent ; and fraud 
 vitiates all contracts. The title does not pass under a sale procured by 
 fraud ; ^ and though there be a delivery, the possession of the true owner 
 is not divested; the fraudulent purchaser is liable in an action of tres- 
 pass or replevin for an unlawful taking of the goods.* The defrauded 
 seller may bring an action to recover the goods.^ 
 
 Any kind of fraud practiced on the part of the borrower, in order to 
 procure the loan, either by a suppression of the truth or by express 
 falsehood, will avoid the contract and render him liable for all casual- 
 ties. Asking a favor on the ground of friendship, he is not at liberty 
 to conceal facts that might have a tendency to prevent the loan. 
 
 § 144. One who obtains the loan of a chattel by a fraudulent misrep- 
 resentation stands in no better relation towards the lender than a tres- 
 passer." There is here no legal delivery, and no consent to the taking ; 
 because consent, in law, is more than a mere formal act of the mind, 
 and must be unclouded by fraud. On a sale procured through fraud 
 
 1 The principle stated in the text is afQrmed in Harter v. Blancliard, 64 Barb. 617. 
 
 2 In an emergency rendering the act necessary, the master may hypothecate or sell 
 the ship or the cargo at an intermediate port ; the necessity enlarges his power. But- 
 ler v. Murray, 30 X. Y. 8S; Chambers v. G-rantzon, "7 Bosiv. 414: Xelson v. Belmont, 
 21 N. T. 36; Jlorritt v. Walsh, 32 N. Y. G8.5. 
 
 8 Boot V. French, 13 Wend. TjIo. 
 
 ^ Gary v. Houtaling, 1 Hill, 311; Gouldlng v. Davidson, l'C. X. Y. (i04, 606; Ash v. 
 Putnam, 1 Hill, 302. 
 
 6 Nichols V. Michael, 23 N. Y. 2(;4. It has been held repeatedly that a sale to an 
 honest purchaser for value will put the property beyond the reach of the first seller. 
 Paddon v. Taylor, 44 X. Y. 371; Simpson v. Del Hoyo, 94 X. Y. 189. But would this 
 result follow if the fraud of the first purchaser was such as to render him liable to 
 conviction for grand larceny under § .528 of the Penal Code ? See People v. Lyon, 99 
 N. Y. 210, 224. 
 
 8 Campbell v. Stakes, 2 Wend. E. 137; Gary v. Houtaling, supra. 
 
Gratuitous Loans. 121 
 
 and false pretenses, the party obtaining the property could not be con- 
 victed of larceny in this State prior to the adoption of the Penal Code 
 in. 1881 ; ^ but a bailee might be so convicted who acquired the property 
 fraudulently with a felonious intent to deprive the owner of it. In both 
 cases it was conceded that there was the moral guilt of larceny, but it 
 was not regarded as the same crime under the adjudications.^ The 
 Penal Code has swept away many of the finely drawn distinctions that 
 formerly were recognized with reluctance by the courts in the adminis- 
 tration of justice, and has embraced in the term " larceny " many dis- 
 tinct offenses at common law and under the Revised Statutes which 
 involved the same moral guilt in their commission, including embezzle- 
 ment, obtaining property by false pretenses and felonious breach of trust.' 
 § 115. Before the adoption of the Penal Code in this State it was 
 held that in order to constitute the crime of larceny, the taking must 
 be with intent to steal, and must be equivalent to an act of trespass ; * 
 
 1 Ross T. People, 5 Hill, R. 294; Bassett v. Spofford, 45 N. Y. 387; Zink v. People, 
 *77 N. Y. 114; Thorne v. Turk, 94 N. Y. 90; People v. Morse, 99 Jf. Y. 662. As to the 
 effect of a delivery procured by fraud on the civil rights of a bailee, see Bigelow v. 
 Heaton, 6 Hill, 43. 
 
 2 People V. Andersoji, 14 John. R. 295 ; People v. McGarren, 17 Wend. 460. A per- 
 son who intentionally appropriates to his own use property held by him as bailee is 
 guilty of larceny. Matter of McFarland, 59 Hun, 304 ; Penal Code, § 528. 
 
 ' People V. Dumar, 106 N. Y. 502; Penal Code, § 528. "A person who, with the in- 
 tent to deprive or defraud the true owner of his property, or of the use and benefit 
 thereof, or to appropriate the same to the use of the taker, or of any other person, 
 either — 
 
 "1. Takes from the possession of the true owner, or of any other person ; or obtains 
 from such possession by color or aid of fraudulent or false representation or pretense, or 
 of any false token or writing; or secretes, withholds, or appropriates to his own use, 
 or that of any other person other than the true owner, any money, personal property, 
 thing in action, evidence of debt or contract, or article of value of any kind ; or, 
 
 " 2. Having in his possession, custody or control, as a bailee, servant, attorney, agent, 
 clerk, trustee, or officer of any person, association, or corporation, or as a public offi- 
 cer, or as a person authorized by agreement or by competent authority, to hold or take 
 such possession, custody or control, any money, property, evidence of debt or contract, 
 articles of value of any nature, or thing in action or possession, appropriates the same 
 to his own use, or that of any other person other than the true owner or person en- 
 titled to the benefit thereof ; 
 
 " Steals such property, and is guilty of larceny." Penal Code, § 528. 
 
 " A purchase of property by means of a false pretense is not criminal where the 
 false pretense relates to the purchaser's means or ability to pay, unless the pretense is 
 made in writing and signed by the party to be charged." Penal Code, § 544. 
 
 *The People v. McDonald, 43 K. Y. 61; Commonwealth v. King, 9 Gush. 284; 
 Thom v. Turk, 94 N. Y. 90. How far tlie Penal Code has rendered obsolete prior 
 decisions cannot safely be stated. The authorities cited in support of the remaining 
 propositoins of this section are in harmony with the existing law. 
 
122 Law ok Bailmeistts. 
 
 but the taking need not be from the actual custody of the owner. A 
 servant entrusted with his master's horse may be convicted of larceny, 
 where he takes the animal from the stable with intent to steal and run 
 away with it.^ So may the man who hires or borrows a horse on pre- 
 tense of taking a journey, but in truth with intent to steal him ; '■" and 
 so may the carrier who severs part of the goods from the rest with a 
 felonious intent to appropriate them as his own.'' The taking and con- 
 version of the property, with a felonious intent, by a party having the 
 custody or possession of it for a special purpose, is larceny ; * and it is 
 adjudged a felony for a man, eloping with another's wife, to take her 
 husband's goods with her, on her request.*^ 
 
 § 146. The lender is bound to deal fairly with the borrower ; but he 
 is not liable for damages arising from the defective state or nature of 
 the things loaned, unless it is shown that he was aware of the defect." 
 If a man lend a vicious animal of the domestic kind, with knowledge of 
 its viciousness, he is liable for the injuries committed by the animal;'' 
 on the ground of his duty to guard and keep the vicious beast \vith. 
 uncommon care, to jjrevent its doing an injury to any person. It 
 follows that a man may lend a vicious or defective chattel, without 
 incurring any liability, provided he notifies the borrower of its vice or 
 defect, so as to enable him to use and keep it with proper care.' 
 
 § 147. IJie Bnrrov'cr, when exempt from Liabilitij. It results from 
 the rule of liability, we have stated, that in the case of chattels loaned, 
 the owner must abide the loss, if they perish through any accident 
 which a very careful and vigilant man could not have avoided. If they 
 
 1 People V. Wood, 2 Park. Or. 22. 
 
 2 Brannan's Case, 1 City H. Eec. 50; Commonwealth v. James, 1 Pick. 37.5. 
 8 Nichols V. The People, 17 jST. Y. 114. 
 
 * Bassett v. Spofford, 45 N. y. 387. Under section 528 of the Penal Code a person 
 who intentionally appropriates to his own use property held by him as bailee is guilty 
 of larceny. Matter of McFarland, 59 Hun, 304. 
 
 ^ People V. Schuyler, 6 Cowen, 572. 
 
 " MacCarthy v. Young, 6 Hurl, and Nor. Ex. 329; Blackmore v. The Bristol* E. 
 Co., 8 Ellis & Black, 10.35, 10.50. 
 
 7 Campbell v. Page, 67 Barb. 113; Kissam v. Jones, 56 Him, 432. These cases hold 
 one who lets a vicious horse liable for damages sustained by the hirer in consequence 
 (jf want of notice of the vicious propensities of the animal. The liability of the lender 
 does not arise out of the loan ; it stands on general principles. Van Leuven v. Lyke, 
 1 N. T. 515; Osincup v. Nichols, 49 Barb. 145; Dickson v. McCoy, .39 N. Y. 400. The 
 California Code provides that the lender of a thing for use must indemnify the bor- 
 rower for damage caused by defects or vices in it which he know at the time of lend- 
 ing and concealed from the borrower. Cal. Civil Code, § 1S!13. As to the owner's 
 duty in keeping wild animals, see Scribner v. Kelly, 38 Barb. 14. 
 
 8 The merit of a watch-dog proves a defect under some circumstances. See Fairchild 
 V. Bentley, 30 Barb. 147. 
 
GllATUITOUS LoAK«. 123 
 
 be taken from him by robbery, or stolen out of his possession, notwith- 
 standing his extraordinary care, the borrower is not liable.^ The law 
 demands no impossibility, and if he uses more than ordinary diligence, 
 he is not chargeable if they be wrested from him by a force which he 
 cannot resist.^ His implied contract does not bind him to guaranty the 
 lender against the machinations and crimes of third persons ; in the case 
 of a borrowed horse, if he put him in his stable, and he is stolen from 
 thence, the borrower is not answerable for him. But if he or his serv- 
 ant leave the stable door open, and the thieves take the opportxmity 
 of that, and steal the horse, he is chargeable ; because the neglect gave 
 the thieves the occasion to steal the horse.^ 
 
 § 148. The borrower is not liable for losses caused by inevitable 
 accident, or by the act of God ; even a common carrier is not liable for 
 such losses. Still it is clear that both the carrier and the borrower are 
 liable for a loss caused in part by superior natural force, and in part 
 by his own negligence, where it appears that the loss might have been 
 prevented by due foresight and care.* He is liable where through his 
 own fault he brings the property under the operation of an act of God ; ^ 
 as where from the want of due diligence he fails to remove it from 
 exposure to such an act." 
 
 § 149. There are many cases of loss by accident, besides those which 
 occur from the act of God, for which the borrower is not responsible. 
 He is not hable for losses caused by a riot, without any neglect on his 
 part ; nor for borrowed chattels destroyed by fire, there being no im- 
 putation against him of any want of care.' An example is put from 
 the civil law, to show that he may be held liable for a loss by fire : if 
 the house of Gains be in flames and he being able to secure one thing 
 only, save an urn of his own in preference to a silver ewer which he 
 borrowed of Titius, he shall make the lender a compensation for this. 
 loss ; especially if the ewer be the more valuable, and would consequently 
 have been preferred had he been the owner of them both ; even if his 
 urn be more precious, he must either leave it and bring away the bor- 
 rowed vessel, or pay Titius the value of that which is lost ; unless the 
 alarm was so sudden and the fire so violent, that no deliberation or 
 selection was practicable, and Cains had time only to snatch up tha 
 first utensil that presented itself. 
 
 1 Wood V. McClure, 7 Ind. 155; Field v. Brockett, 56 Maine, 121. 
 
 " Abraham v. Nunn, 42 Ala. 51; Tale v. Oliver, 21 La. Ann. B. 454. 
 
 • Per Lord Holt in Coggs v. Bernard, 2 Ld. Kaym. 909. 
 
 « Colt V. McMechen, 6 John. K. 160. 
 
 5 Eeed v. Spaulding, 30 N. T. 630; Davis v. Garrett, 6 Bing. 716. 
 
 - Bowman v. Teall, 23 Wend. 310; Wing. v. N. T. & Erie R. R. Co., 1 Hilton, 235. 
 
 ' Hylanl v. Paul, 33 Barb. 241, 245. 
 
224 Law of Bajclmbnts. 
 
 Kent agrees that if the borrower in this case saves his own goods, 
 and is not^able to save the articles borrowed without abandoning his 
 own, he must pay for the loss, because he lises less care of the articles 
 borrowed than of his own. But he raises the question, if the borrower's 
 goods are more valuable than those borrowed, and both cannot be saved, 
 whether he is bound in that case to prefer the less valuable borrowed 
 chattels ? And he answers it by citations from Pothier, that he is 
 liable, without expressing any opinion of his owu.^ 
 
 § 150. The borrower's liability is to be ascertained in all cases by 
 referring directly to his express or implied contract, to take the utmost 
 care of Sie goods loaned. Any failure in diligence, or want of the pru- 
 dence and care demanded by his contract, will render him liable ; the 
 principle is plain and general ; and its application to the facts, as de- 
 veloped in each particular case, being a matter to be left to the jury, it 
 can hardly be important to determhie, whether proof that the borrower 
 has saved his own very valuable goods from loss in preference to those 
 bailed to him of much less value, where he could not save them both, 
 would be held evidence of due care under the contract. There can be, 
 from the nature of the case supposed, no time for deliberation ; and it 
 would seem that the bailee should be held excusable for acting on the 
 impulse of the moment, to seize and save the most valuable article first ; 
 and that such an act should not be regarded as conclusive evidence of 
 a want of proper care of the less valuable borrowed article. Under the 
 common law, all the circumstances may be proved, and the question is 
 to be passed upon as one of fact.^ 
 
 § 151. The borrower is not liable for goods taken from him by an 
 armed force without his fault or complicity ; '^ he is not responsible for 
 property destroyed by the public enemy in a time of war, or by an act 
 of piracy committed on the high seas. Robbery and depredations upon 
 the high seas constitute the crime of piracy ; an olSense against the uni- 
 
 1 2 Kent's Comm. 
 
 ijij 
 
 ss 
 
 -Bland v. Wosnack, 2 JIurph. (X. C.) STi. In this case tlie defendant received 
 money to carry witliout reward, and placed the same in his pocket-book, in the outside 
 pocket of his surtout or body-coat, and carried his own money in his breast-coat pocket. 
 In his journey from North Carolina towards New York, he lost his pocket-book and 
 his friend' s money, and saved his own ; and the conrt left it to the jury to say whether 
 the loss arose from his want of due care. In the case of The Delaware Bank v. John 
 Smith (1 Edm. Sel. Cas. .351), a package of money was handed to the defendant to 
 carry and deliver to one ^Yheelcr, and the defendant alleged tliat he lost it in crossing 
 a stream, while other packages of money carried by him were not lost, nor even wet; 
 and the action being one of trover, the court left it to the jury to say whether the 
 money had been lost or converted by the defendant. In Anderson v. Foresman, Wright 
 (Ohio), ."i'.)8, the fact of loss by theft was left to the jury, on all the circumstances. 
 
 ^ Abraham v. Nunn, 42 Ala. 51; Tale v. Oliver, 21 La. Ann. I!. 4.54. 
 
Gbatxjitous Loans. 125 
 
 versal law of society ; the pirate being, according to Coke, hostis hu- 
 mani generic} In all these instances of loss by irresistible force, in 
 order to excuse the borrower or other bailee, it must be made to appear 
 that he has not been wanting in the prudence and foresight required of 
 him by his contract ; it must be shown that he has not, through his neg- 
 ligence and oversight, exposed the property to the peril of the loss for 
 which he seeks to excuse himself. For where his imprudence has in- 
 duced the train of circumstances producing the loss ; as where he haa 
 ridden a borrowed horse in the night time over a road infested with 
 robbers, or too near the advanced guard of a hostile army, and the horse 
 has been killed or taken from him, he is responsible ; because he has 
 contributed to the result. It forms no excuse for him to say that th& 
 force was irresistible, where it is apparent that it might have been 
 avoided by the exercise of proper vigilance.^ 
 
 § 152. The borrower for an indefinite period, like a depositary, is 
 liable for all casualties after a legal demand has been made upon him 
 for a restitution of the loan. His refusal to restore on demand consti- 
 tutes a conversion of the property, and renders him liable for its value.* 
 As a borrower for an indefinite time, he cannot stand in any better 
 condition, after a demand made, than the depositary without reward ; 
 and we have seen that he is liable in all events, and may be recovered 
 against on the ground of the conversion, evidenced by his refusal to 
 restore the goods. But the owner, if he so elect, may pursue the prop- 
 erty and demand its restitution, notwithstanding the act of conversion ; 
 and this course is to be preferred where there is any doubt as to the 
 pecuniary responsibility of the bailee.* The baUee cannot object to 
 this, because he is precluded from deriving any benefit from his own 
 wrongful act ; but a stranger who has purchased the property of the 
 bailee in good faith, may prove acts of ownership by the borrower over 
 the property with the knowledge of the lender ; ^ and where he is in- 
 duced to purchase by such acts, amounting to, or accompanying an ex- 
 press declaration that the borrower is the owner, the lender is not per- 
 mitted to assert the contrary ; he is estopped after that from asserting 
 even the truth to the injury of the party acting upon his admission.^ 
 
 § 153. It foUows from the nature of the contract, that in a loan for 
 
 1 XJ. states V. Palmer, 3 WTieat. 610; The Marianna Flora, 11 Wheat. 1. 
 
 2 Scranton v. Baxter, 4 Sand, a ; Jones on Bailm. 68, 70, 71. 
 
 ^Durrell v. Mosher, 8 John. R. 445; Mitchell v. Williams, 4 Hill, 13. The owner 
 may bring an action of assumpsit on the implied contract. Delaware Bank v. John 
 Smith, supra. 
 
 * Code of Civil Procedure, §§ 1689-1736. = McMahon v. Sloan, 12 Penn. St. 229. 
 
 «Dezell V. Odell, 3 Hill, 215; Petrie v. Feeter, 21 Wend. 172; Foster v. Newland, 21 
 Wend. 94; Watson's Exrs. v. McLaren, 19 Wend. 557. 
 
126 Law of Bailments. 
 
 use, the borrower is not liable for the ordinary wear, decay or deprecia- 
 tion of the thing loaned, provided he use it in a discreet and careful 
 manner. If it be made worse by the effects of the use alone for which 
 it was borrowed, and without any fault on the part of the borrower, he 
 is evidently not answerable for the same, since the very object of the 
 loan is its use.^ But if it be loaned for one purpose, and used for an- 
 other, he is, as we have seen, liable for losses by any casualty whatever ; 
 this is ever the case in a bailment for hire ; and the rule is enforced 
 still more strictly as against the borrower.^ 
 
 § 154. The civilians were divided in opinion upon the question, 
 whether in the case of a valued loan, or where the goods lent are esti- 
 mated at a certain price, the borrower must be considered as bound in 
 all events to restore either the things lent or the value of them so fixed ; 
 and the Code of Louisiana, based upon the civil law, holds him thus 
 bound.^ Under the common law, the borrower's liability will hardly be 
 affected by the mere fact that a value is placed upon the thing loaned, 
 unless it is done with the understanding that he shall return it or pay 
 for it. Of itself, the placing of a value or price upon the article does 
 not enhance the obligation of the borrower ; it merely serves to fix the 
 amount of recovery in case of a loss for which the bailee is responsible.* 
 
 § 155. Ecldi'iice, Jiurden of Proof. The nature of the action has a 
 material bearing upon the evidence. The pleadings present the issue 
 of fact to be tried : the plaintiff alleges the facts constituting his cause 
 of action, and the defendant interposes either a denial or some new 
 matter constituting a defense ; and the general rule is that the burden 
 of proof is on the party making an affirmative allegation.'" But under 
 tills rule, the substance of the allegation to be tried, rather than the 
 particular form of the pleading, determines where the onus lies.^ 
 
 The plaintiff must prove a negative, where his right of action depends 
 upon the truth of his negative averment : if the plaintiff's right to re- 
 
 iCode of Louisiana, Art. 2873; Beller v. Schnltz, 44 Micli. 529. The borrower of 
 stock is not liable for its depreciation without his fault. Parker v. Gaines, 11 South- 
 western Rep'r (Ark.), 693. 
 
 ^Wheelock t. "Wheelright, 5 Mass. 104; Koss v. Southern Cotton-Oil Co., 41 Fed. 
 Eep. 1.52. 
 
 8 Code of La., Art. 2871. 
 
 * Jones on Bailm. 71 ; Story on Bailm. § 253. 
 
 6 Greene v. Waggoner, 2 Hilton, 297; Costigan v. Mohawk & Hudson R. E. Co., 2 
 Denio, 609; Hollister v. Bender, 1 Hill. 150. If the defendant admits the allegations of 
 the complaint and pleads a justification, the burden is upon him to establish this affirm- 
 ative defense. As a rule the burden of proof remains where the issue made by the 
 pleadings places it, although the weight of evidence on one side may have a controlling 
 effect unless met by proof of the other party. Blunt v. Barrett, 124 N. T. 117; Heil- 
 man v. Lazarus, 90 N. T. 672. ^Bentley v. Bentley, 7 Cowen, 701. 
 
Gratuitous Loan;,;. 127 
 
 cover depends upon the fact that his goods were destroyed by fire 
 through the negligence of the defendant, a bailee, he must show afftrm- 
 atively that the loss was caused by such negligence or failure in duty.^ 
 Two reasons are assigned in support of this rule of evidence ; first, that 
 he has alleged it, and it is essential to his right to recover : and second, 
 that he has charged the defendant with a breach of duty, involving a 
 negative ; and it is one of the first principles of evidence not to presume 
 an omission or breach of duty. A sure test to determine with which 
 party the burden lies, is to consider which is entitled to a verdict with- 
 out any proof being given on the subject.^ The onus rests with the 
 party that has the right to open the case. 
 
 § 156. The action against a bailee should be chosen with a knowl- 
 edge of the material facts ; in other words, the plaintiff's suit should be 
 based upon his true cause of action. M </., the action of trover cannot 
 be maintained against a bailee for goods which have been lost by acci- 
 dent or stolen from him ; for though a demand and refusal are prima 
 facie evidence of a conversion of goods then in the possession of the 
 bailee, this evidence is overcome or fails to establish the fact of a con- 
 version, as soon as it appears that the goods were not in the defendant's 
 possession at the time of the demand. In a case of this kind, the owner 
 should bring his action on the contract, or a suit in the nature of an 
 action on the case ; ° since the bailee may be held liable in the proper 
 form of action, though not responsible in an action of trover. 
 
 Proof of a failure to return borrowed chattels within a reasonable 
 time, no time being specified for their return, does not of itself show a 
 conversion of them ; * a demand must be proved, and a failure to return 
 after the demand ; because a conversion is a tortious act, to be estab- 
 hshed by affirmative evidence.* A bailee's failure to keep his promise 
 to deliver or to return the goods is a breach of contract ; it is not of 
 itself a conversion of them.^ 
 
 iLamb v. Camden & Amboy K. E. & T. Co., 46 N. Y. 271, 278, and cases there 
 cited; Stewart v. Stone, 127 N. T. 500, 506. 
 
 21 Greenl. Ev. §§ 74, 80; 1 Phillips' Ev. 5th Amer. Ed., with Cowen & Hill's Notes, 
 810, 824 ; Holbrook v. Utica & Schenectady E. E. Co. , 12 N". Y. 236 ; Button v. Hudson 
 River R. E. Co., 18 N. Y. 248; Johnson v. Hudson River E. E. Co., 20 N. Y. 65. 
 
 ^Hallenbake v. Fish, 8 Wend. 547; Packard v. Getman, 4 Wend. 6iri; Salt Springs 
 National Bank v. Wheeler, 48 N. Y. 492; Lookwood v. Bull, 1 Cowen, 3:22, ;;28. 
 
 * See Maginn v. Dinsmore, 70 N. Y. 410, 417. 
 
 ^Fox V. Pmden, 3 Daly, 187; Eoss v. Clark, 27 Mo. 549; Gilbert v. Manchester 
 Iron M. Co., 11 Wend. 625 ; Whitney v. Slauson, 30 Barb. 276 ; but see Duvall v. Mosher, 
 8 John. E. 445. 
 
 8 Scovill V. Griffith, 12 N. Y. 509, 518. See Eldridge v. Adams, 54 Barb. 417, showing 
 how far the intent of the bailee is material. 
 
128 Law of Bailments. 
 
 § 157. In the action upon the contract of loan, the lender establishes 
 prima facie his right to recover, by proving the loan and the borrow- 
 er's failure to return the property within the time specified ; the burden 
 of proving that the property has been destroyed or lost, and that the 
 loss did not occur through his neglect, lests upon the borrower. This 
 is the rule of both the civil and the common law. It is enough, in the 
 first instance, for the lender to show that the borrower has not returned 
 the borrowed chattels at the end of the time for which they were lent ; 
 or if no time was specified, that he has neglected to return them after a 
 demand made ; upon this proof the defendant is liable, unless he shows 
 a loss or destruction of the chattels without any fault on his part. He 
 must account for his failure to return them.^ 
 
 § 158. The plaintifi: must begin with evidence suflicient to establish 
 prima facie bis cause of action; and where the gist of the action is the 
 defendant's negligence, he must sustain his complaint by proof. ^ He 
 may do this in various ways : first, by showing a failure to restore the 
 goods on demand ; ^ second, by showing that the goods were not returned 
 or delivered according to the contract, or that they were returned or 
 delivered in a different and damaged condition ; ■" third, that they were 
 injured in such a manner as does not happen in the ordinary course 
 of things, without negligence.^ In cases like these, the facts being 
 peculiarly within the knowledge of the defendant, it is incumbent upon 
 him to explain -nhy the goods are not restored, or delivered according 
 to the- contract ; or to show that they were lost or damaged without 
 any fault on his part. For the same reason, when the injury or death 
 of a horse in the hands of the borrower is proved, it devolves upon him 
 to show that he has exercised the care required by the nature of the 
 bailment, or that the injury or loss occurred without any fault or 
 neglect on his part." Unexplained, the loss raises a presumption of 
 
 iScranton v. Baxter, 4 Sand. E. 5; Bennett v. O'Brien, .37 Dl. 2.50; Boies v. Hart- 
 ford, etc., E. E. Co., :;7 Conn. 272; Delaware Bank v. John Smith, 1 Edm. Sel. Cas. 
 351; Ouderkirkv. Central Nat. Bank, 119 N. T. 203, 207. The owner may recover in 
 an action on the contract, on proof of a failure to return ; but not in an action of 
 trover. Ross v. Clark, 27 Mo. .549. See Clapp v. Nelson, 12 Texas, 370. Plaintiff may 
 recover on the contract, without proving his title. Casey v. Suter, 30 Md 1 
 
 2 Newton v. Pope, 1 Co wen, 109; Schmidt v. Blood, 9 Wend. 268; Ware 'v. Gay 11 
 Pick. 100; Stewart V. Stone, 127 N. T. 500, 506. 
 
 'Schwerin v. McKee, 5 Eobt. 404, 419; Arent v. Squire, 1 Daly, 347; Stewart v. 
 Stone, 127 N. T. 500, 506; Fairfax v. New York Cent., etc., E. E. Co 67 N Y 11 
 
 ^ Smith V. N. Y. C. E. Co., 43 Barb. 225. 
 
 5 Scott V. The London & St. Catharine Dock Co., 3 Hurlstone & Coltman, 596; Col- 
 
 ^J'V.^rf "' ^''' ''''■ ^- ^■*' ^"'^'^ -^^''^'^^- Co. V. New Haven Steamboat Co., 50 
 JV. 1. 121; Arnot v. Branconier, 14 Mo. App. 431. 
 
 6 Bennett v. O'Brien, 37 111. 250; Scranton v. Baxter, 4 Sand. 5 
 
Gkatuitotjs Loans. 1-29 
 
 negligenee against liim ; it casts the burden of proof upon him, to 
 explain, as he may, the cause of the loss.^ 
 
 § 159. The rule of liability, as well as the action and the pleadings, 
 is to be considered in determining with which party lies the burden of 
 proof. For example, the common carrier is liable, in the absence of 
 any special contract, for all losses except these arising from two 
 sources ; hence where he fails to deliver the goods, he is prima facie 
 liable for them ; the burden of proof is on him to show a loss coming 
 within the exceptions.^ And where in his bill of lading he exempts 
 himself from losses arising from the " dangers of lake navigation," the 
 shipper of the goods makes out 2i prima facie case against liim, by prov- 
 ing, the contract, the shipment and the arrival of the goods in a dam- 
 aged or ruined condition ; the carrier must then prove that the injury 
 was caused by one of the dangers of the lake navigation ; and the plaint- 
 iff, to recover, must then show that the injury arose from the carrier's 
 negligence.' 
 
 In like manner the onus probandi may pass from side to side in the 
 trial of an action against a bailee vrithout hire. JE. g., in an action 
 against a depositary receiving goods to keep without reward, the de- 
 positor alleges a conversion of the property, and proves that the bailee 
 has refused to redeliver on demand ; and then the onus of accounting 
 for the default lies with the bailee, the presumption being that he has 
 converted the goods to his ovsti use; he repels this presumption by 
 showing that they have been lost or destroyed.* Where the action is 
 based upon the contract, the bailor establishes his cause of action by 
 showing the bailee's failure to redeliver the property according to the 
 agreement ; the onus is then cast upon the bailee to show such a loss as 
 will excuse him, namely, a loss without any gross neglect on his part.^ 
 
 § 160. Bestitution. In a loan for use, there is always an implied agree- 
 ment by the borrower, to redeliver the thing loaned as soon as the time 
 
 1 Wood V. McClure, 7 Ind. 155; McDaniels v. Eobinson, 26 Vt. 316, 340; N. J. Steam 
 Nav. Co. V. Merchants' Bank, 6 How. U. S. 344, 423; Fortune v. Harris, 6 Jones Law, 
 N". C. 532. 
 
 2]Sr. J. Steam Nav. Co. t. Merchants' Bank, 6 How. U. S. 344, 423; Camden & Am- 
 boy E. E. V. Baldauf, 16 Penn. St. 67. 
 
 3 Western Transportation Co. v. Downer, 11 Wallace, 129; and Clark v. Barnwell, 
 12 How. U. S. 272. 
 
 * Ante, § 156. Strictly speaking, the burden of proof does not shift from side to side 
 on the trial, but remains where the issue made by the pleadings places it, although 
 the weight of the evidence on one side may have a controlling effect unless met by 
 proof of the other party. Heilman v. Lazarus, 90 N. T. 672; Blunt v. Barrett, 124 
 N. T. 114; Stewart v. Stone, 127 N. T. 500, 506; Claflin v. Meyer, 75 N. Y. 260, 205. 
 
 5 Graves v. Ticknor, 6 N. H. 537; Beardslee v. Pachardson, 11 Wend. 25; 2 Salk. 655; 
 ante, § 157. 
 
130 Laav of Bailments. 
 
 has expired for which the loan was made ; or, no time being specified, 
 within a reasonable time ; or as soon as the purpose of the loan has 
 been accomplished.^ Every bailee is bound to redeliver the goods bailed 
 according to the terms of his particular contract ; and that of the bor- 
 rower requires that he return the goods to the lender at the time and 
 place contemplated by the parties. The depositary may retain them 
 until a demand is made for them ; - and a mandatary is not to be pre- 
 sumed in fault until after he has been called upon for the property ; « 
 but a borrower must return the loan within the time limited, and is 
 liable in action on the contract for a failure to do so.* 
 
 § IGl. The borrower may return the loan by the hand of an agent or 
 servant ; but in doing so, he is bound to employ an agent or servant of 
 approved skill and prudence, and is answerable for the same degree of 
 care and diligence as when he makes the return by his own hand.^ His 
 liability covers the custody of the article until it reaches the owner's 
 possession ; he is answerable for the negligence of his agent or servant." 
 He cannot transfer his duty, though he may ordinarily commit the man- 
 ual service of making the return to his agent. He may not do this, 
 where the nature of the ]3roperty is such that his custody of it bears the 
 character of a personal trust ; a trust not being in its nature transfer- 
 able by the trustee.' 
 
 § 102. It is the borrower's duty to return the goods or chattels to the 
 lender or to his authorized agent ; it is not enough for him to return 
 them to the place from which he received them ; he must restore them 
 to the lender's custody.* A delivery of them to a person not author- 
 ized to receive them is a conversion of the property ; and though the 
 misdelivery be made under a mistake of fact, it renders him liable for 
 the goods in an action of trover." A wrongful intent is not an essential 
 
 1 Wilcox V. Hogan, 5 Ind. 546; Ross v. Clark, 2T Mo. 54(1; Lay's Exr. v. Lawson's 
 Admr., 23 Ala. K. 377; 2 Kent's Comm. 573-577; Green v. Hollings worth, 5 Dana (Ky.) 
 173. 
 
 2 Brown v. Cook, 9 Jolm. R. 361; Phelps v. Bostwick, 22 Barb. 314- S C "2 N" Y 
 242. 
 
 ^Beardslee v. Richardson, 11 Wend. 25. 
 
 ''Scrantou v. Baxter, 4 Sand. R. 5; Fox v. Pruden, 3 Daly, 187; Clapp v. Xelson, 12 
 Texas, .370; Cal. Civil Code, § 1895. 
 
 5 Scranton v. Baxter, supra. 6 Hall v. Warner, 60 Barb. 198. 
 
 ^See Colyar v. Taylor, 1 Coldw. Tenn. 372; Skeller v. Kohn, 17 111. 170; cases of 
 mandate involving the principle asserted in the text. See also, Diefendorf v. Spraker, 
 10 N". T. 240. 
 
 SEsmay v. Panning, 9 Barb. 176; S. C. 5 How. Pr. 228. 
 
 "Devereux v. Barclay, 2 Barn & Aid. 702; Packard v. Getman, 4 Wend. 613; Ste- 
 phenson v. Kent, 4 Bing. 476; Coykendall v. Eaton, 55 Barb. 188, 193; S. C. 37 How. 
 Pr. 449. 
 
Gratuitous Loans. 131 
 
 element of the conversion ; it is enough that the rightful owner has 
 been deprived of his property by some unauthorized act of another 
 assuming dominion or control over it.^ An unauthorized use of the 
 property by a bailee is a conversion of it ; ^ and so is an unauthorized 
 deposit of the property with a third person, wlien it brings a charge 
 upon the owner ; as where a bailee unnecessarily leaves a borrowed 
 chattel at an inn.^ 
 
 § 1G3. It is the borrower's duty to return the property with its nat- 
 ural increase ; because in a gratuitous loan of animals, securities or 
 stocks, there is nothing to vary the general rule that the increment, the 
 interest or increase from property, accrues to the OAvner.* 
 
 § 164. The place where the borrowed goods are to be restored in the 
 absence of any express agreement in that respect, will depend upon the 
 circumstances and nature of the contract. The borrower must return 
 them to the lender, ordinarily at the place from which he received them ; 
 but the lender may designate the place where they shall be received. 
 The borrower, in fact, contracts to redeUver tHe' goods bailed ; and if 
 no place be agreed upon, the bailor may name the place. ^ The bailee, 
 no place being appointed for the delivery, must seek the lender and 
 learn at what place he will receive them." This has been expressly 
 adjudged to be the rule of law in respect to contracts for the delivery of 
 speciSc articles ; but the rule is subject to some qualifications, depend- 
 ing upon the circumstances and the nature, value and bulk of the 
 articles to be delivered. Jewelry, for instance, should be returned to 
 the lender in person, or to his authorized agent ; while other articles, 
 such as horses or cattle, should be delivered at the place where the 
 collateral circumstances show that the lender intended to receive them.' 
 
 § 165. The Code of Louisiana provides that if the contract does not 
 
 ^Boyce v. Brockway, 31 N. T. 490; Laverty v. Snethen, 68 N. T. 522; Pease v. 
 Smith, 61 X. T. 477; Cobb v. Dows, 9 Barb. 242; Everett v. Coffin, 6 "Wend. 603; 
 Williams v. Merle, 11 Wend. 30; Saltus v. Everett, 20 Wend. 267; Hoffman v. Cason, 
 22 Wend. 285; Covell v. Hill, 4 Denio, 323; Murphy v. Hobhs, 8 Col. 17; Gregory v. 
 Fichtner, 27 Abb. Kew Cas. 86; Haddix v. Eastman, 14 111. App. 443. 
 
 2 Beach v. Earitan, etc., E. E. Co., 37 N. T. 457. See also, Vincent v. Conklin, 1 E. 
 D. Smith, 203; Gove v. Watson, 61 N. H. 136. 
 
 ^ Seyds v. Hay, 4 Term E. 260. The innkeeper may hold the property, a horse, for 
 its keep. Threlfold v. Borwick, 2 Eng. Eep. 689; Jones v. Morrill, 42 Barb. 623; S. C. 
 31 How. Pr. 639. 
 
 *Orser v. Storms, 9 Cowen, 687; Hasbrook v. Vandervoort, 4 Sand. E. 74; Booth 
 V. Terrell, 16 Georgia, 25; Allen v. Delano, 55 Maine, 113. 
 
 5 Co. Litt. 210 b ; Aldrich v. Albee, 1 Greenleaf E. 120. 
 
 "Bixby V. Whitney, 5 Greenleaf E. 192; Esmay v. Fanning, 9 Barb. 176. 
 
 '2 Kent's Comm. 507; Chipman on Contracts, 25, 20, 27; Story on Bailm. § 117. 
 See Cal. Civil Code, § 1896. 
 
iSii IjAW ui' 1jAILMe:sts. 
 
 specify the place where the articles bailed must be restored, that it shalt 
 be restored at the place where the bailment was made.^ Though the 
 place be not named, if it may be mferred from the terms of the contract, 
 or from the circumstances attendmg it, the delivery must be made at 
 that place. The borrower assumes the obligation to redeliver, which 
 is as imperative upon him as if he had entered into an agreement to 
 pay a fixed amoimt in specific articles. The party bound to render a 
 service or make a payment by a given clay must seek the party to whom 
 the debt or duty is due.^ Is the place of performing the contract 
 changed by substituting a conmiodity for money ? The place of per- 
 formance is sometimes implied from the nature of the articles to be 
 delivered. If a merchant or manufacturer engages to pay on demand 
 in the articles of his trade, and no jilace is specified m the contract, the 
 store of the merchant, or the workshop, or place of deposit of the fabrics 
 of the manufacturer, is the place A^-here payment must be demanded 
 before an action accrues for the non-performance of the contract ; » 
 because, from the peculiar circumstances and course of business of the 
 promisors, the inference is that the parties intended that the articles 
 should be delivered at the promisors' usual place of making and deliver- 
 ing the articles sold by them. The engagement is that the articles shall 
 be delivered on demand, and this seems to imply that the creditor 
 must go to the debtor to make the demand, before the latter can be in 
 default. 
 
 But where a note of hand is given, payable at a time fixed, in cattle 
 grain or other portable articles, and no place of payment is designated 
 in the note, the creditor's place of residence is the place of payment ; for 
 in this case there is nothing to rebut the usual presumption that the 
 debtor or party bound must seek his creditor and discharge his obhga- 
 tion within the time limited.* In like manner, the borrower is under an 
 obligation to return the borrowed articles to the lender, and if the time 
 and not the place of the return be fixed, he must take them to the lend- 
 er's residence or place of business ; for this obligation to redeliver is 
 in substance a debt or duty due to the lender. 
 
 § 166. There is some diversity in the decisions in regard to the place 
 where a contract for a delivery of specific articles shall be performed ; 
 but this diversity arises out of the difference of circumstances attend- 
 
 1 Art. 2925. 
 
 2 Goodwin v. Holbrook, 4 Wend. E. 377. 
 
 3 Chip, on Cont. 28, 9; Buck v. Burk, 18 N. T. 337; Haskell v. Mathews, 37 Maine, 
 541; Vance v. Bloomer, 20 Wend. 190. 
 
 * Goodwin v. Holbrook, 4 Wend. E. 377; Stoker v. Cogswell, 25 How. Pr. 267 274; 
 Musselman v. Stoner, 31 Penn. St. 265. ' 
 
Gratuitous Loans. 133 
 
 mg the contract.^ Thus, an agreement made at the residence of the 
 debtor, payable in farm produce at the market price, may be performed 
 at the place where it is made ; and there being no time fixed for the pay- 
 ment, it is held that no action ■ndU lie until after a demand is made at 
 the farm of the debtor. The want of time in such a contract renders it 
 payable on demand ; and the fact that it is payable in farm produce 
 draws after it the inference that the farm is the place of payment.^ 
 
 It is held in Kentucky, that on contracts for the delivery of property, 
 where no place is expressed, the usual residence of the obligor is the 
 place of performance ; and that where the property is to be delivered on 
 request, a special request at the obhgor's residence must be averred.' 
 The action was on a contract for the payment of two hundred dollars, 
 in a negro, upon request, and it was adjudged on demurrer that the 
 plaintiff must aver in his declaration a demand of the chattel at the 
 residence of the vendor, or show circumstances justifying a departure. 
 The law judges the place according to the nature and subject matter of 
 the thing to be performed ; presuming, in such a case, that the contract 
 is to be executed at the place where it is made. 
 
 § 167. In construing contracts of this nature, courts endeavor to carry 
 into effect the intention of the parties, which may very often be inferred 
 from the subject and purpose of the contract, as well as from its lan- 
 guage. In an action for articles delivered to a bailee to be redelivered 
 when called for, the bailee being absent from the commonwealth, a de- 
 mand was made of his wife at the place of his residence ; and it was 
 held good, on the ground that one who makes a contract to deliver 
 specific articles on demand should be always ready at his dweUing-house 
 or place of business.^ This is clearly much more reasonable than to 
 permit a demand to be made upon him personally for them, since he 
 cannot be expected to carry the goods about with him. The reason 
 here is the same as that which requires a due-bill without time or place, 
 given by a merchant for goods, or a mechanic for work, to be demanded 
 of the merchant at his store, or of the mechanic at his shop.^ 
 
 § 168. There is a perfect analogy between the contract to pay a fixed 
 sum in specific articles and the undertaking of the borrower to redeliver 
 the goods bailed to him. In respect to the time, place and manner of 
 
 iLobdellv. Hopkins, 5 Cowen R. 516; Chambers v. Winn, Prin. Dec. Kentucky, 
 192; Wilmoutli v. Patton, 2 Bibb's Kentucky Kep. 280; Mason v. Briggs, 16 Mass. R. 
 453. 
 
 2 Smith V. Leavenworth, 1 Root, 209; Bach v. Owen, 5 Term R. 409; Chandler v. 
 Windship, 6 Mass. K. 310; Banners v. Executors of Howard, Tayl. N. C. 149. 
 
 3 Wilmouth V. Patton, 2 Bibb R. 280. 
 
 * Mason v. Briggs, 16 Mass. R. 453; Franchot v. Leash, 5 Cow. R. 506. 
 
 * Lobdell V. Hopkins, 5 Cowen R. 516; Woodcock v. Bennett, 1 Cow. R. 711. 
 
134 Law of Bailments. 
 
 delivery, the obligation is the same, unless, indeed, the borrower is 
 bound more strongly to seek the lender and learn his pleasure as to the 
 place where he will receive the borrowed articles. The farmer who has 
 given his note, payable m farm produce, may deliver the produce and 
 pay the note at the place where it is made. But one who contracts to 
 pay a given sum in salt, on or before a day named, must go to the resi- 
 dence of his creditor and make his payment there.^ So, also, no doubt 
 the borrower, who has promised to return the bailed goods within a 
 fixed time, must bring them to the lender, either at his residence or place 
 of business, depending upon the circumstances and the subject matter 
 of the contract. If he fail to fulfill the promise, he is liable for the value 
 of the property.'' The duty he owes to the lender to return the property 
 involves an obligation as strong and imperative as that which the debtor 
 owes to his creditor ; he must not wait for a demand unless the loan 
 is made for an indefinite time ; and even then, he must make the return 
 at the place designated by the lender. If he retains the goods for a 
 longer time than has been agreed on, and after a demand, he is liable 
 for any loss that may happen ; ^ because he is liable as for a conversion 
 of the property. And, of course, whenever the bailee has been guilty of 
 a neglect in the return which amounts to an act of conversion, he is 
 liable for all subsequent losses, even by accident. 
 
 § 169. Where several persons jointly borrow an article, they are 
 bound for it in solido ; * they enter into a joint contract to take care of 
 and return it, which may be enforced against them all jointly, because 
 each is answerable for the acts of the others. But the action should be 
 brought against them all, or against the survivors, if one or more of 
 them be dead. An agreement entered into by several persons is pre- 
 sumed to be a joint contract, unless otherwise expressed.^ 
 
 § 170. A general loan for use is deemed strictly precarious ; it is held 
 subject to the will of the lender ; he grants simply the custody of the 
 chattels lent, with the authority to use them, and by implication retains 
 the right to revoke the authority and reclaim them at any time. The 
 possession in fact remains with the lender, so that under our old practice 
 he might mamtain the action of trespass against a third person who had 
 seized the property ; which could be maintained only where the plaintiff 
 
 1 Goodwin v. Holbrook, 4 Wend. R. 377; La Farge v. Rickert, 5 "Wend. 187, 189. 
 
 ^Durrell y. Mosher, 8 John. R. 445; Bryant v. Wardell, 2 Exc-hq. R. 479; Put v. 
 Kowsteme, T. Raym. R. 472; Lashmere v. Toplady, 2 Vent. 17ii; Lucas v. Trumbull, 
 15 Gray, 310; Porter v. Foster, 7 Shep. 391; Ripley v. Dolbier, 6 id. 382; Hart v. 
 Skinner, 16 Vt. 138; Spencer v. Pitcher, 8 Leigh, 565. 
 
 ' Code of Louisiana, Art. 2870; Jones on Bailm. 68; Coggs v. Bernard, 2 Ld. Raym. 
 909, 916; Fox v. Pruden, 3 Daly, 187, 190. 
 
 * Code of Louisiana, Art. 2876. '' 1 Cowen Trea. (i,)!i. (il 1. :!(! eil. 
 
Gratuitous Loans. 135 
 
 liad either the actual or constructive possession of the goods. And he 
 is constructively in possession whenever he has the immediate right to 
 reduce them into his actual possession.^ 
 
 The loan being subject to the pleasure of the lender, it may be re- 
 voked in several ways ; by a demand that it be returned, by the death of 
 the lender, or by a sale of the thing loaned with notice to the bailee. 
 Being given for an indefinite time, the permission to use the property 
 may be withdrawn at will, like the authority of an agent, or like a 
 license to use or occupy lands. ^ 
 
 § 171. The borrower is not bound to restore, or pay damages for the 
 goods, where they are taken or destroyed by irresistible force, or by the 
 wrongful act of a third person ; in other words, he relieves himself from 
 liability by showing such a loss or injury to the property, and that the 
 same occurred without any negligence or want of prudence on his part.'' 
 He must account for his failure to restore the goods, and he can only 
 do so by showing the manner in which they were lost or injured ; that 
 is to say, he must answer the case made against him by proof of his 
 failure to return the goods, by showiag a loss or injury for which he is 
 not ordinarily responsible.* The form of the issue decides where the 
 burden of proof lies; if the plaintiff alleges an injury by the negligence 
 of the defendant, he must support his allegation by proof,^ and it is 
 conceded that slight proof will be sufficient. 
 
 § 172. A loss of the goods by theft will excuse the borrower, when 
 it occurs without any fault on his part. The mere fact of a loss by 
 theft from a room of an inn or while the goods are in the custody of a 
 
 1 Orser v. Storms, 9 Coweu E. 687; Neff v. Thompson, 8 Barb. 213, 216; Van Sickle 
 V. Van Sickle, 8 How. Pr. 265. 
 
 2 The death of the licensor or his sale and conveyance of the premises revokes his 
 prior license. Eggleston v. N. T. & H. R. R. Co., 35 Barb. 162. The license is valid 
 imtil it is revoked. Seldon v. Del. & Hud. Canal Co., 29 N. T. 634; Pratt v. Ogden, 
 34 N. T. 20. 
 
 ' Vaughan v. Menlove, 3 Bing.- N. C. 468; Scranton v. Baxter, 4 Sand. 5; Cumins v. 
 Wood, 44 Illinois, 416; 37 id. 250; Abraham v. ISTunn, 42 Ala. 51; Tale v. Oliver, 21 
 La. Ann. R. 454. After the bailee has shown that the loss of the goods was occasioned 
 by some accident or misfortime not within his control, such as a fire or a burglary, he 
 is not required to go further and show absence of negligence by giving affirmative 
 proof of the exercise of due care in guarding against a possibility of loss from such 
 causes ; but it is for the bailor to show a want of proper care on the part of the bailee 
 in guarding the goods that caused or contributed to their loss. Claflin v. Meyer, 75 
 N. T. 260; Stewart v. Stone, 127 N. Y. 500, 506; Mills v. Gilbreth, 47 Me. 320. 
 
 * The carrier's failure to deliver casts upon him tlie burden of accounting for his 
 failure. Burrell v. N. T. C. R. R. Co., 45 N. T. 184. 
 
 6 Watson V. Bauer, 4 Abbott's Pr. N. S. 273; Blunt v. Barrett, 124 N. Y. 117; Claflin 
 V. Meyer, 75 N. Y. 260; Heilman v. Lazarus, 90 N. Y. 672; Heinemann v. Heard, 02 
 K. Y. 448. 
 
136 Law of Bailments. 
 
 carrier, is considered proof of negligence ; ^ because ordinarily the carrier 
 and always the innkeeper insures against this kind of loss ; the rule 
 establishing his liability being framed with the intention of holding 
 him accountable for losses of this kind ; ^ and not considered applicable 
 where the carrier's contract leaves him liable simply as a bailee for hire.' 
 A refusal or failure to give any account of the loss or injury to the goods 
 raises a presumption against the bailee, and proof of that fact is suf- 
 ficient in the first instance to hold him accountable for the goods.^ 
 
 § 173. The borrower of a chattel is not permitted to set up title in 
 himself, to justify a violation of his promise to return it ; he is not 
 allowed to dispute the lender's title. The same principle aiDplies as 
 between landlord and tenant, principal and agent, and bailor and baUee.' 
 A sale of the property, where the bailee has no existing legal interest 
 in it as against the bailor, changes the right of possession, and the bailee 
 with notice cannot hold the property after the sale.^ The purchaser 
 takes the place of the bailor. 'W^herethe bailee fails to return the prop- 
 erty and promises to pay for it, the action of assumpsit lies against 
 him as in the case of a sale.' And after a special deposit of money 
 for safe keeping, an agreement between the parties to consider it a loan 
 converts the bailment hito a debt.' 
 
 § 174. Though the borrower cannot acquire title to chattels loaned to 
 him, by any act of which he may be guilty, he is, as we have seen, ha- 
 ble for their value whenever he has exercised acts of ownership over 
 them, and the lender elects to bring his action as for a conversion of 
 the property. The owner does not lose his title without his consent, 
 by any alteration of form through ^vhich his property may pass ; he 
 may seize it in its new shape so long as he can prove the identity of the 
 
 1 Gile V. Libbey, 3G Barb. 70; Hulett v. Swift, 42 Barb. l':Xi; Merritt v. Claghorn 
 .'•. Adol. & Ellis, N. S. 164; flute v. Wiggins, 14 Jolin. K. 175; Gilbert v. Dale, 5 Adol' 
 & Elhs, 4.,(); Alden v. Pearson, 13 Gray, 342; Clark y. Barnwell, 12 How 272- 
 McDanlels v. Eobinson, 26 Vt. .316, 340. ' 
 
 2 Schieffelin v. Haryey, John. K. 171, 177; Watkinson y. Laughtou, S Jolin. E 
 213; De Rothschild y. Royal Mail Steam Packet Co., 14 Eng. Law and Eq. :327 
 
 8 Lamb v. Camden & Amboy R. & Tr. Co., 46 N. X. 271 278 
 
 *Bush V. Miller, 13 Barb. 481, 489; Schwerin v. McK^e, 5 Robt. R. 404 419- Logan 
 V. Mathews, 6 Barr. 417; Cumins y. Wood, 44 111. 410. See Bowman 'y. Eaton 24 
 Barb. 528. ' 
 
 t ' ^^r^ ^^'T']^^^ ""''°''' -"' ^^"^ ^- ^^^""^^' ''^ i1- ISO; Maxwell v. Hous- 
 ton, 67 N. C. 305; Pulliam v. Burlingame, 81 Mo. Ill 
 
 « Hodges vHurd, 47 111. :W:i; Britton y. Aymar, 23 La. Ann. R. 63. It would be 
 
 otherwise ,f the contract were one of hiring. Hardy y. Lemons, 36 La. Ann. 146. 
 
 Parker v. Tiffany, .52 Illinois, 286. Where a man receiyes depreciated notes and 
 
 giyes a due-bill for them, he is prima facie liable for them as a debt. Rankin v. 
 
 Craft, 1 Heiskell II. 711. s chiles v. Garrison, 32 Mo. 475. 
 
Gratuitous Loai^s. I37 
 
 original materials, as leather made into shoes, cloth into coats, trees 
 squared into timber, wood converted into coal, logs manufactured into 
 boards, or black salts converted into pearl-ashes.^ But if he elects to 
 bring his action of trover against any person who acquires the custody 
 of his goods by bailment or otherwise, and recovers their value m dam- 
 ages, his title will pass to the defendant on payment of the judgment 
 entered for the amount of the recovery.^ 
 
 § 175. As gratuitous loans sometimes run on through a number of 
 years, it is important to ascertain the application of the statute of limi- 
 tations ; and here we are to observe that the statute runs from the time 
 when the action accrues. Under a general loan for an indefinite time, 
 it cannot commence to run until after a conversion of the property by 
 the bailee ; ' and under a loan which really leaves the goods in the hands 
 of the borrower subject to the lender's call, a demand must be necessary 
 before a right of action will accrue.* With reference to the statute, the 
 lender's right is not unlike that of a customer, who deposits his money 
 in a bank subject to his check or draft ; and his right of action does not 
 accrue until after he has drawn for the money in the usual way.^ There 
 being no violation of the contract, mere lapse of time will not affect 
 the lender's title or right of property." 
 
 1 Curtis V. Grant, 7 John. K. 168; 5 id. 348; Babcock v. Gill, 10 John. E. 237; 
 Brown v. Sax, 7 Cowen, 95; Baker v. Wheeler, 8 Wend. K. 505. 
 
 ^Osterhout v. Roberts, 8 Cowen, 43; Thurst v. West, 31 N. T. 210; Marsden v. 
 Cornell, 62 ST. Y. 215, 220; Thayer v. Manley, 73 K T. 305. 
 
 ' Kelsey v. Griswold, 6 Barb. 436; Huntington v. Douglas, 1 Eobt. 204; Bruce v. 
 Tilton, 25 N. T. 194; Roberts v. Bardell^ 61 Barb. 37. See Roberts v. Sykes, 30 Barb. 
 173. 
 
 * Payne v. Gardiner, 29 N. Y. 146. The old cases should be read in connection 
 with the new provision of the Code of Civil Procedure in relation to the time limited 
 for the commencement of actions where a demand is necessary. This provision is as 
 follows : " Where a right exists, but a demand is necessary to entitle a person to main- 
 tain an action, the time within which the action must be commenced must be com- 
 puted from the time when the right to make the demand is complete, except in one of 
 the following cases : 
 
 " 1. Where the right grows out of the receipt or detention of money or property by 
 an agent, trustee, attorney or other person acting in a fiduciary capacity ,the time must 
 be computed from the time when the person having the right to make the demand has 
 actual knowledge of the facts upon which that right depends. 
 
 "2. Where there was a deposit of money not to be repaid at a fixed time, but only 
 upon a special demand, or a delivery of personal property, not to be returned specifi- 
 cally or in kind at a fixed time or upon a fixed contingency, the time must be com- 
 puted from the demand." Code of Civ. Pro. § 410. 
 
 6 Downes v. Phoenix Bank, 6 Hill, 297. 
 
 * In Booth V. Terrell, 18 Ga. 570, a gratuitous loan was made for life; and in Orser 
 v. Storms, 9 Cowen, 687, tlie loan ran on for seventeen years. See Farrow v. Bragg, 
 30 Ala. 261; McCoy v. Odom, 20 Ala. 502; Cortelyou v. Lansing, 2 Caines' Cas. 200. 
 
138 Law or Bailments. 
 
 CHAPTER V- 
 
 PLEDGES OR PAWXS— COLLATERAL SECURITIES. 
 
 § 176. We come next in order to consider bailments, mutually bene- 
 ficial to both the parties to the contract. A pledge is something put 
 in pawn or deposited with another as security for a debt, or for the per- 
 formance of some agreement ; and the contract is confined to personal 
 property.^ 
 
 Notes, bonds, stocks, and in general all kinds of personal chattels 
 may be given or delivered in pledge ; and the mere delivery of a chat- 
 tel or chose in actionals sufficient.^ The title to the thing delivered in 
 pledge does not pass, as it does in the case of a chattel mortgage. 
 The delivery is made as a security for the payment of a debt or for the 
 performance of some other act ; and the party making the delivery 
 retains a power of redemption. In a chattel mortgage the title is con- 
 veyed, subject to a condition of defeasance in case of payment ; while 
 the title to goods dejjosited in pledge remains in the person making 
 the deposit ; only a special property passing to the pledgee. There is 
 also another distinction between a pledge and a mortgage of personal 
 property ; a delivery is essential to a pledge, while a mortgage of goods 
 is valid without a deUvery.' 
 
 1 Markham v. Jaudon, 41 N. T. 23.5, 241 ; Steams v. Marsh, 4 Denio, 227. A pledge 
 is a bailment of goods by a debtor to his creditor to be kept till the debt is dischargeil. 
 Jones on Bailm. 118. The fourth sort of bailments is when goods or chattels are de- 
 livered to another as a pawn, to be security for money borrowed of him by the bailor; 
 and this is called in Latin vadium, and in English a pawn or pledge. Coggs v. Ber- 
 nard, 2 Ld. Raym. 909, 91-3. Kent calls it a bailment or delivery of goods by a debtor 
 to his creditor, to be kept till the debt is discharged. 2 Kent' s Comm. 57*7, 578. Story, 
 as a bailment of personal property, as security for some debt or engagement. Story 
 on Bailm. § 286. It is the pignori acceptum of the civil law, a contract by which a 
 debtor gives something to his creditor as a security for his debt. Code Louisiana, 
 Alt. 3100. Pledge is a deposit of personal property by way of security for the per- 
 formance of another act. Cal. Civil Code, § 2986. 
 
 "^ McLean v. Walker, 10 John. R. 472; Campbell v. Parker, 9 Bosw. 322; Luckey v. 
 Gannon, 1 Sweeny, 12. 
 
 ' Cortelyou v. Lansing, 2 Caines' Cases, 200; an opinion not delivered (Barrow v. 
 Baxter, 5 John. R. 258, 260), but cited and approved until it has become the highest 
 
Pledges ok Pawns. 139 
 
 § 177. Pledging property as a security for the payment of a debt has 
 been practiced from time immemorial, among communities having no 
 common source or chain of history; and therefore nothing can be 
 gained by searching for the origin of the custom in the history of re- 
 mote nations. Our mortgage, derived from the civil law, accomplishes 
 the same thing, with a variation of remedies ; in a general sense, it 
 pledges the property covered by it for the payment of a debt ; its name 
 is significant ; it was termed a mortgage, the French translation of the 
 vadium mortuum, or dead pledge, because it carries in itself no means 
 for its redemption derived from the rents and profits of the property, 
 and because on a failure to pay the debt it was in law lost or dead to 
 the mortgagor ; and also so called in contrast with the vivum vadium, 
 or hving pledge, a grant of lands under which the mortgagee took pos- 
 session of the premises and received and applied the rents and profits 
 upon the debt, until the same was paid ; the property thus working 
 out its own redemption.^ 
 
 Equity has wrought many changes in the common law ; and we are 
 not surprised to find in the recent act of Parliament reorganizing the 
 English courts, a provision that where the rules of equity come in con- 
 flict with, they shall prevail over, the strict rules of law ; a provision 
 which in express terms continues in force this transforming element in 
 our laws. Among the changes wrought through its agency, that which 
 has passed upon the mortgage on real estate is not the least conspic- 
 uous. From a conditional estate, ripening into an absolute estate on 
 the failure of the grantor to pay the sum specified in it on the day 
 named, it has come to be deemed and practically enforced as a security ; 
 it does not now create an estate in the land, it merely gives a lien upon 
 the property.*" 
 
 authority; West v. Beach, 3 Cowen, 82; Eomaine v. Van Allen, 26 jST. Y. 309; Roberts 
 V. Sykes, 30 Barb. 173; King v. Van Vleck, 40 Hun, 70; Siedenbach v. Eiley, HI 
 N. Y. 560; Parshall v. Eggart, 54 N. Y. 18. A pledge in the legal sense requires 
 delivery to the pledgee. He must have possession of it. Christian v. Atlantic & N. C. 
 E. E. Co., 183 U. S. 233; Casey v. Cavaroe, 96 U. S. 467. 
 
 1 Powell on Mortgages, Chap. I., and 2 Black. Comm. 157. 
 
 2 Kortright v. Cady, 21 N. Y. 343; Kellogg v. Smith, 26 K. Y. 18, 20. The earlier 
 •writers speak of anything given as a security for a debt as a pledge. " A loan," says 
 Glanville, " is sometimes made on the security of a pledge, and the pledge may consist 
 of cliattels, lands or rents. Sometimes possession is immediately given of the pledge 
 on receipt of the loan, and sometimes it is not. Sometimes the thing is pledged for a 
 term, and sometimes without. When a chattel is pledged and possession is given, and 
 for a certain term, the creditor is bound to keep the pledge safely, and not to use it to 
 its detriment. If it be agreed that in case the debtor should not redeem the pledge at 
 the end of the term, the pledge shall remain with the creditor as his cn\n property, 
 the agreement must be observed. But if there be no such agreement. ;; ■ ' \'.:cyq be a 
 
240 Law oh- Bailjnients. 
 
 § 178 In a general sense the owner, by giving a mortgage upon his 
 real estate, pledges it to secure the payment of a debt or the fulfiUment 
 of some obUgation; and it is the remedy provided by law which fixes 
 the nature of the instrument. It must be foreclosed in order to render 
 it available.^ On the other hand, by giving a mortgage upon his goods 
 or chattels the owner transfers them ; the transfer to be void on pay- 
 ment of the money or on performance of the duty or obUgation thereby 
 secured. There is no real difference between the two instruments, in 
 respect to the terms employed in them; there are formal words of 
 transfer in each ; and there is a condition embodied in each, on the ful- 
 fillment of which the instrument is by its terms rendered void ; and 
 there is also in each a power to sell the property and apply the pro- 
 ceeds to the payment of the debt secured. The difference between the 
 two is found in the remedies given by law ; it is not found in the in- 
 struments themselves.^ 
 
 Under the strict rules of hm; a mortgage of lands was held to convey 
 the title ; and after a forfeiture the mortgagee was allowed to recover 
 the premises by an action of ejectment." By degrees the right of 
 redemption was established in courts of equity ; and at length it has 
 become settled and familiar law, that the title does not pass on the exe- 
 cution of the mortgage, nor on a failure to pay the sum secured on the 
 day it becomes due.^ There must be either a sale of the premises on 
 notice, under the power contained m the mortgage, or a foreclosure by 
 suit. In either of these ways the title will pass and the right of re- 
 demiDtion be cut off."^ 
 
 § 179. A mortgage of goods or chattels is something more than a 
 security ; it is a sale, and operates as a transfer of the legal title to the 
 
 fixed time of redemption, and the debtor malce delay in i^ayment, the creditor may 
 quicken the redemption "by a writ (of which lie gives the form), and which requires 
 the debtor, without delay, to redeem the pledge. On return of the writ, if the de- 
 fendant confessed the pledge, he was commanded to redeem in a reasonable time, and 
 on default the creditor had license to treat the pledge as his own. But if the pledge 
 was made without any particular term, the creditor might demand his debt at any 
 time, and the debt being discharged, the creditor was bound to restore the pledge with- 
 out any deterioration." Glanville, Lib. 10, c. I. p. ."/.); 1 Reeves, 101, 102. 
 
 1 Stewart v. Hutchins, l.'i Wend. 4s.''); affirmed, Hill, 113. 
 
 ^ The forms now in use in this State show this close resemblance. 
 
 ^ Jackson v. Dubois, 4 John. R. 210. 
 
 * Stoddard v. Hart, 2:5 X. Y. 556, r>:,'.); 'Williams v. Townsend, 31 X. Y. 411; Trustees, 
 of Union College v. 'Wheeler, 61 N. Y. 88; Hubbell v. Jloulson, 53 N. Y. 225. 
 
 5 Brown v. Frost, 10 Paige, 243. One who is not notified or not made a party may 
 redeem; he is not affected. Gage v. Brewster, 31 N. Y. 218; Tuthill v. Tracy, 31 N. Y. 
 157; Cheney V. 'Woodruff, 45 N. Y. !«; Reynolds v. Park, 53 N. Y. 36, 41; Miner v. 
 Beekman, 50 X. Y. 3.'i7, -Ml. 
 
Pledges or Pawks. 141 
 
 mortgagee, subject only to be defeated by a performance of the condi- 
 tion ; 1 and his title becomes absolute at law on the mortgagor's failure 
 to pay according to its terms.^ If by the terms of the mortgage the 
 mortgagor is entitled to the possession until the day of payment arrives, 
 he has a possessory interest in the goods and a right of redemption ; 
 the property may therefore be sold on an execution against him, and 
 the purchaser will acquire his interest and the right to redeem.' When 
 the instrument defines the circumstances under which the right of pos- 
 session is to vest in the mortgagee, the inference is that in the mean- 
 time the possession is to remain with the mortgagor ; and in such cases 
 also the mortgagor has a possessory interest in the goods, mi til default 
 is made in the payment.* And when the mortgage, besides defining 
 the circumstances under which the mortgagee has the right to take 
 possession of the property, contains a clause authorizing him to take 
 the possession at any time when he deems himself unsafe, the mort- 
 gagor's interest remains until default is made in payment, or until the 
 mortgagee takes possession in good faith for his own safety.^ The pur- 
 chaser under a sale subject to the mortgage acquires the exact interest 
 of the mortgagor; he does not become personally bound to pay the 
 debt secured by the mortgage.^ 
 
 1 Butler V. Miller, 1 Comst. (N. T. Eep.) 496; Blssell v. Pearce, 28N. Y. 252; Shuart 
 T. Taylor, 7 How. Pr. 251; Coles v. Clark, 3 Cush. 399; Bordwell v. Collie, 45 N". T. 
 494; Hembree v. Blackbiirn, 16 Oregon, 153; Porter v. Parmly, 43 How. Pr. 445. 
 
 2 Burdick V. McVanner, 2 Denio, 170; Fuller v. Acker, 1 Hill, 47.3; Brown v. Bement, 
 8 John. R. 96; Ackleyv. Finch, 7 Cowen, 290; Langdon v. Buel, 9 "Wend. 80; Hudson 
 V. Walter, 34 How. Pr. 385; 39 Barb. 606; Casserly v. Witherbee, 119 N.T. 522; Duffiis 
 T. Bangs, 43 Hun, 52; Bragelman v. Daue, 69 N. T. 69; Moore v. Prentiss Tool & 
 Supply Co., 133 N". T. 144; Sherman v. Slayback, 58 Hun, 255. See Leadbetter v. 
 Leadbetter, 125 N. T. 290 ; Manchester v. Tibbetts, 121 K T. 219; Porter v. Parmly, 
 43 How. Pr. 44.5. While this doctrine is teclmically and theoretically correct, yet 
 practically the substantial title remains in the mortgagor with all the incidents of a 
 legal title, and he retains the use, control and benefit of the property subject to the 
 mortgage. Moore v. Prentiss Tool & Supply Co., 133 N. Y. 144. 
 
 SHullT. Carnley, 11 N. Y. 501; S. C. 17 N. Y. 202; Goulet v. Asseler, 22 N". Y. 
 225. 
 
 * Hall V. Sampson, 35 N. Y. 274. 
 
 ^ Hathaway v. Brayman, 42 IS". Y. 322. It is clear that if a person takes property 
 under such a clause in a mortgage, not because he deems himself unsafe or the debt 
 insecure, but inspired by other and unjustifiable motives, he will not be protected by 
 the power conferred in the instrument. Hyer v. Sutton, 59 Hun, 40; "Werner v. 
 Bergman, 28 Kansas, 65 ; Forlong v. Cox, 77 111. 293 ; Davenport v. Ledger, 80 111. 
 574; Roy v. Goings, 96 111. 361. 
 
 * Hamil v. Gillespie, 48 N. Y. 556. As against creditors the mortgage must be 
 refiled within the year. Porter v. Parmly, 52 N. Y. 185; Tremaine v. Mortimer, 128 
 N. Y. 1. 
 
142 Law of Bailments. 
 
 § 180. The right of property drawa after it the right of possession; 
 and when there is no provision in the chattel mortgage giving the pos- 
 session to the mortgagor, the mortgagee, having the right of property 
 until defeated by the performance of the condition, has as an incident 
 thereto the right of possession, and may therefore take the goods into 
 his own custody, or maintain trespass or trover for them against any 
 one who takes or converts them to his own use.^ The danger clause 
 is to he construed by itself ; the mortgagee's right of possession under 
 it does not accrue until he takes action under it ; nevertheless its inser- 
 tion in the mortgage implies an understanding between the parties that 
 the mortgagor is to retain the property until the mortgagee deeming 
 himself unsafe takes the possession.'-' 
 
 § 181. In equity the mortgagor has a right to redeem, even after a 
 default has been made ; he retains the right until it is cut off by a fore- 
 closure or sale under the mortgage. " And he may enforce this right Ijy 
 an action in equity ; ' and in this action he is entitled to an account oi' 
 the rents or reasonable hire of the property, with a view to ascertain 
 the true amount due ; and he ought to be accountable for the reasonable 
 expenses incurred in the keeping of the property, where these exceed its 
 rental value.'' Asking to redeem on equitable grounds, he must do 
 equity ; and he should tender the amount due with interest, including 
 all reasonable charges, before he brings his action. To avoid the pay- 
 ment of costs, he must offer all that equity can require of him in the 
 premises.^ 
 
 The mortgage usually states the true amount to secure which it is 
 given ; and sometimes it is given to secure contingent liabilities up to a 
 certain amount;'' in this case the mortgagor is entitled to redeem on 
 paying the liabilities particularly specified.' 
 
 1 Moore v. Prentiss Tool & Supply Co., 13:3 X. T. 144, 149; Coles v. Clark, 3 Cush. 
 399; Shuart t. Taylor, 1 How. Pr. 2.")1. See Mattison v. Baucus, 1 N. T. (1 Comst.), 
 295; and Butler v. Miller, IN. Y. 496; Chadwick v. Lamb, 29 Barb. 518; 13 N. Y. 
 5.56, 565; Hall v. Sampson, 35 N. Y. 274; S. C. 19 How. Pr. 481. 
 
 2 Hall V. Sampson, supra; Huggins y. Fryer, 1 Lansing, 276. 
 
 "Charter v. Stevens, 3 Denio, 33; Patchin v. Pierce, 12 Wend. 61; Porter v. 
 Parmly, 43 How. Pr. 445; S. C. 52 N. Y. 1S5; Sherman v. Slayback, 58 Hun, 255, 261. 
 
 4 Pratt V. Stiles, 17 How. Pr. 211, 221; Hinman v. Judson, 13 Barb. (329, 630; West 
 V. Crary, 47 N. Y. 423. 
 
 6 Mickles v. Dillaye, 17 N. Y. 80; a, suit for redemption by the mortgagor of real 
 estate. 
 
 ^ Brookway v. Wells, 1 Paige Ch. R. 017; Vroom v. Ditmas, 4 Paige Ch. 520, 535; 
 Archer v. (.'nle, 22 How. Pr. 411; Halstead v. Swartz, 46 How. Pr. 289. 
 
 ' Beers v. Waterbury, 8 Bosw. 396. 
 
 8 Tliis is a clear inference from the adjudications. Miller v. Lockwood, 32 N. T. 
 293, 299. 
 
Pledges or Pawns. 143 
 
 § 182. The mortgagee is not obliged by law to take any action by way 
 of foreclosure ; he may take possession and hold the property ; after 
 forfeiture, no further act is necessary to give him the legal title. Though 
 the mortgage contains a power of sale, he is not bound to act under it ; 
 but if he takes and retains the goods, and they are in value equal to Ms 
 demand, he cannot afterwards maintain an action for the debt.^ 
 
 § 183. Payment of the debt extinguishes the mortgage ; - made after, 
 it is a waiver of the forfeiture, and will extinguish the mortgagee's 
 title.' A part payment, or a new security given to the mortgagee, does 
 not impair his rights under the mortgage.* A tender of the amount 
 due after a forfeiture does not take from the mortgagee his legal title ;' 
 and yet it is clear that his acceptance of the money does deprive him of 
 Ms title to the goods. And where he sells a part of them under the 
 power, and realizes from the sale sufficient to pay the debt, his mort- 
 gage is satisfied and he has no title to or interest in the remainder : ^ he 
 has acquired all that the instrument was designed to give him. On the 
 reason of this rule, he cannot at any time safely refuse a tender of the 
 amoimt due ; he certainly cannot without subjecting himself to an action 
 in equity to redeem. Besides, why should a mortgage of goods and 
 chattels be treated differently from a mortgage upon real estate ? Only 
 prudential reasons can be assigned for the different remedies given 
 under them. 
 
 § 184. The form of chattel mortgage now in general use authorizes 
 the mortgagee, on a default in payment, to take possession of the prop- 
 erty and sell it at pubUc or private sale, and apply the proceeds to the 
 payment of the debt. Under this power it has been held that a fair 
 sale, in good faith, for a reasonable price, will forclose the mortgagor's 
 right to redeem ; and it cannot be denied that such a sale is within the 
 terms of the authority. In the case of a pledge, one object of the sale is 
 to transfer the title ; under the mortgage, the title is already perfect in 
 the mortgagee ; and the object of the sale is to convert the property into 
 its equivalent in money, and apply it on the debt. This being done m 
 the manner agreed upon between the parties, no ground is left for an 
 action in equity to redeem, the only remedy left to the mortgagor.' 
 
 iBurdickv. MoVanner, 2 Denio, 170; Case v. Boughton, 11 Wend. 106; Stoddard 
 V. Denison, 2 Sweeney, 54; Sherman v. Slayback, 58 Hun, 255, 261. 
 
 2 Monnot v. Ibert, 33 Barb. 24. 
 
 'West V. Crary, 47 N. T. 423; Park v. Hall, 2 Pick. 206, 210; Barry v. Bennett, 
 7 Mete. 354. 
 
 * Patcbin v. Pierce, 12 Wend. 61; Miller y. Lockwood, 32 N. T. 293. 
 
 ^ Brown v. Bement, 8 John. 96; Koyes v. Wyckofe, 30 Hun, 466. 
 
 6 Charter v. Stevens, 3 Denio, 33. 
 
 ' Chamberlain v. Martin, 43 Barb. 607, and cases there cited. See BaUou v. Cunning- 
 
144 Law of Bailments. 
 
 The sale must be made pursuant to the terms of the power ; if the 
 authority be to take and sell at public auction, the sale must be made 
 in that manner, or it cannot be effectual as a foreclosure : there must 
 be the usual auction sale, on reasonable notice.^ On a sale in this 
 manner, conducted fairly, the mortgagee may purchase the property ; ^ 
 as he may on a foreclosure sale of real estate. 
 
 § 185. "When given to secure the payment of money, the mortgage of 
 either real or personal estate is but an accessory or incident to the debt ; 
 and hence a change in the form of the debt does not affect its validity.* 
 An assignment of the debt passes the interest in the mortgage. If by a 
 special agreement the mortgage is not to accompany the debt assigned, 
 it is extinguished and ceases to be a subsisting security.* "VSTiere a 
 mortgage was given to secure a note payable to order, and the holder 
 indorsed the note over, and at the same time delivered the mortgage to 
 the indorsee, but made no assignment of it in writing, it was held that 
 the transfer of the note carried with it the mortgage. The debt is the 
 principal, and the security the incident ; and the assignment of the 
 principal draws after it the incident.^ For the same reason, the creditor 
 may assign the principal debt to a third person, and give him the benefit 
 of a pledge which he holds to secure the payment of the debt. The 
 pledger is not injured by this ; he retams his right to redeem on pay- 
 ment of the amount due on the debt, the same as before the assign- 
 ment ; ° and the assignee acquires precisely the rights of the pledgee 
 subject to the same obligations.'' 
 
 § 186. Though formerly much blended in the books, there is now 
 a clear discrimination established between a chattel mortgage and a 
 pledge. A pledge of goods or chattels is completed by a delivery of 
 them ; it does not transfer the title ; it only gives to the pledgee a lien 
 
 ham, 60 Barb. 425; S. C. 4 Lansing, 74; and Stoddard v. Denison, 2 Sweeney 54; 
 38 How. Pr. 296; 7 Abbott's Pr. N. S. .000. 
 
 1 Charter v. Stevens, 3 Denio, 33. 
 
 2 Olcott V. Tioga E. E. Co., 40 Barb. 170; S. C. 27 N. T. 546; Casserly v. Witherbee, 
 119 N. Y. 522; Edmiston v. Bruclier, 40 Hun, 256; King v. Walbridge, 48 Hun, 470; 
 Elliott V. Wood, 45 N. T. 71; Hall v. Ditson, 5 Abb. New Cas. 198. 
 
 3 Hill V. Beebe, 13 N. T. 556; Gregory v. Thomas, 20 Wend. 17. 
 
 « Jackson v. Willard, 4 John. E. 41, 43; Jackson v. Blodget, 5 Cowen, 202; Martin 
 T. Mowlin, 2 Burr. 970; Green v. Hart, 1 John. E. 581. 
 
 6 Pattison V. Hull, Cowen, 747, 754; Eluhn v. Bankes, 15 Neb. 92; Cal. Civil Code, 
 §§ 2936; and see Morris v. McCuUoch, 83 Pa. St. 34; Alabama Gold Life Ins. Co. v. 
 Hall, 58 Ala. 1; Langdon v. Buel, 9 Wend. 80; Gould v. Ellery, 39 Barb. 163; Wyman 
 V. Smead, 31 How. Pr. 1, 353. 
 
 " Chapman v. Brooks, 31 N. T. 75, 84. 
 
 'Kemp V. Westbrook, 1 Vesey, 17s; Eatcliff v. Vance, 2 Const. Eep. S. C. 239; 
 Brown v. Warren, 43 X. H. 430. 
 
Pledges oe Pawns. 145 
 
 upon them.^ The form of the contract is not controlling ; if there be a 
 transfer of the property, it is more than a pledge, it is a mortgage.^ 
 
 There is no dif&culty in tracing this line of discrimination between a 
 mortgage and a pledge, in contracts relating to goods and chattels. 
 Giving a bill of sale of chattels, with the intention of securing the pay- 
 ment of a debt, or to be held as collateral security for moneys to become 
 due, is to be treated as a mortgage ; it is a transfer of the property, to 
 become void on payment of the debt thereby secured." The law gives 
 effect to the intention with which the bill of sale is executed and deliv- 
 ered ; a separate written or verbal defeasance will convert the bill of 
 sale into a mortgage.^ And the effect of the transfer will not be changed 
 by a stipulation on the part of the assignee to prepare the goods for 
 market.^ 
 
 § 187. The difference between an absolute conveyance and a mort- 
 gage of lands is broad enough ; and yet there is a class of cases in 
 which a deed is converted into a mortgage ; e. g., when the deed is 
 given on account of a present loan, or precedent debt, with a concur- 
 rent agreement in writing, or by parol, for a redemption at a future 
 time upon payment of the debt.^ The law looks through the forms of 
 the transaction, and seeks to carry into effect the real intent of the par- 
 ties ; and as a rule, where the conveyance is made on an application for 
 a loan of money, it will be deemed a mortgage in case the grantee 
 agrees to receive back his money and interest, or a larger sum, and re- 
 convey the property witlain a specified time thereafter, whatever form 
 the writings may assume, the real object being a loan of money.' 
 Where the conveyance is not ia truth made as a security for a loan, an 
 agreement to reconvey at a future time, at the election of the grantor, 
 affords no evidence that the deed was intended as a mortgage." A col- 
 
 ' Brownell v. Hawkins, 4 Barb. 494; Cortelyou v. Lansing, 2 Caines' Cas. 200; 
 Brown v. Bement, 8 John. R. 96; McLean v. Walker, 10 John. E. 471, 474; People v. 
 Remington, 59 Hun, 282, 287. 
 
 2 Langdon v. Bush, 9 Wend. 80; Bunacleugh v. Poolman, 3 Daly, 236. 
 
 ' Barrow v. Paxton, 5 John. R. 258 ; Marsh v. Lawrence, 4 Cowen, 461 ; Siedenbach 
 V. Riley, 111 N. T. 560; Smith v. Beattie, 31 N". T. 542; People v. Remington, 59 Hun, 
 282; Blake v. Corbett, 120 N. T. 327; Woodworth v. "Hodgson, 56 Hun, 236. 
 
 * Brown V. Bement, supra; Hall v. Tuttle, 8 Wend. 375; King v. Van Vleck, 40 
 Hun, 68; 109 N. T. 363. 
 
 5 Smith V. Beattie, 31 N. T. 542, 544. 
 
 « Strong V. Stewart, 4 John. Ch. 167; Henry v. Davis, 7 John. Ch. 40; Clark v. 
 Henry, 2 Cowen, 324; Roach v. Cosine, 9 Wend. 227, 231; Horn v. Keteltas, 46 N. Y. 
 605; Odell v. Montvoss, 68 N". Y. 499; Kraemer v. Adelsbergei-. 122 IN". Y. 467; Simon 
 V. Schmidt, 41 Hun, 318; Erwin v. Curtis, 43 Hun, 202. 
 
 'Holmesv. Grant, 8 Paige's Ch. I!. 213; Robinson v. Cropji). i: i'aige's Ch.480. 
 
 » Glover v. Payn, 19 Wend. 518. 
 
 10 
 
146 Law of Bailments. 
 
 lateral agreement by the grantor to repay the money tends to sho-w 
 that the conveyance was intended as a mortgage ; and the absence of 
 such an agreement tends to prove that it was not so intended.^ 
 
 § 188. A discrimination must be made between a conditional sale 
 and a mortgage of goods or chattels. A sale and delivery on condition 
 that the purchaser is to acquire the title to the property on payment of 
 the purchase money, does not vest the title in him until the condition is 
 fulfilled.^ By the very terms of the sale, the seller is here to continue 
 the owner until the price is paid, and the transfer takes effect on the 
 payment ; it is not a present sale, with a mortgage back to secure the 
 purchase money ' — a form of contract which includes first a sale, and 
 . second an agreement in the nature of a chattel mortgage for the price 
 to be paid.* The collateral agreement here does not prevent the trans- 
 fer of the title ; and though informal, it is to be treated and must be 
 filed as a chattel mortgage.^ 
 
 COXTRAOT. 
 
 I. Capacity to make. 
 II. Right or power to create a pledno. 
 
 III. Subject of pledge. 
 
 IV. Mode of making a pledge. 
 
 V. Relation of pledge to the original contract. 
 VI. Pledgee's duty in preserving. 
 VII. "What Property in the Pledgor and Pledgee ; and resulting 
 Rights and Duties. 
 VIII. Sale or foreclosure. 
 IX. Restitution. 
 X. Remedies. 
 
 § 189. I. Capacitij to Make. The general rule that the deeds and 
 
 1 Conway's Exrs. v. Alexander, 7 Cranch. 218; Flagg v. Mann, 4 Pick. 467. 
 
 2 Herring v. Hoppock, 15 N. T. 409; Ballard v. Burgett, 40 N. T. 314; Sargent v. 
 Metcalf, 5 Gray, 506; Hart v. Carpenter, 24 Conn. 427; Rodney Hunt Machine Co. v. 
 Stewart, 57 Hun, 545; Lewis v. McCabe, 49 Conn. 140; Hotchkiss v. Higgins, 52 
 Conn. 205; Sumner v. "Woods, 67 Ala. 139; Cole v. Berry, 13 Vroom (N". J.), 308; 
 Weeks V. Pike, 60 N. H. 447;'Heinbockle v. Zugbaum, 5 Mont. 344; Warner v. 
 Eoth, 2 Wy. 63; Aultman v. llallory, 5 Xeb. 17S; Segrist v. Crabtree, 131 U. S. 287; 
 McGinnis V. Savage, 29 W. Ya. 362; Dodd v. Bowles, 8 Wash. Terr. 383; Simpson 
 V. Shackleford, 49 Ark. 03; Empire State Type Founding Co. v. Grant, 114 N. T. 40; 
 Perry v. Toimg, 105 J^. C. 403; Russell v. Harkness, 4 Utah,. 197; Luther t. 
 Cote, 61 K. H. 120. 
 
 8 Brewster v. Baker, 20 Barb. 304; Grant v. Skinner, 21 Barb. 5S1; Strong v, Taylor, 
 2 Hill, 3:^0; Barrett y. Pritchard, 2 Pick. 512; Herring v. WiUar.l, 2 Sandf. 4 IS. 
 * Dunning v. St.'arns, 9 Barb. 030; McComljer v. Parker, 14 Pick. 4'.i7. 
 5 Tliompson w Blancbanl, 4 X. Y. 303. 
 
Pledges oj; Pawns. 147 
 
 ■contracts of an infant are not void, but only voidable, supplemented 
 by the rule that the defense of infancy is a personal privilege, renders 
 it quite plain that an infant may be a party to a contract of pledge.^ 
 If he delivers goods or chattels in pledge, to secure the payment of 
 his debt, the pledge must remain valid until he repudiates the transac- 
 tion. "Would a sale of the chattels by him operate as a disaflrmance of 
 the contract of pledge ? It would not of itself, because the sale is not 
 inconsistent with the pledge : it does not repudiate the pledge.^ More- 
 over, if the chattels were delivered in pledge at the time his debt was 
 contracted, it would be necessary for him to rescind the whole transac- 
 tion, and restore the consideration received by him when he incurred 
 the debt. The debt having been incurred for property still in his pos- 
 session, he cannot both keep the property and take back that which he 
 has delivered as security for the payment.^ 
 
 The pledge takes effect by delivery of his hand like a sale and dehv- 
 ery, and hence a rescision will not be implied from a doubtful act ; * nor 
 can it be s§ readily made as it can where he gives a mortgage but does 
 not deliver the chattels covered by it; a subsequent absolute sale 
 and delivery of the chattels disaffirms the contract evidenced by the 
 mortgage.^ 
 
 § 190. The legal incapacity of a married woman under the common 
 law to contract was not based upon the theory of personal incapacity to 
 transact business ; she was always allowed to act as her husband's agent, 
 with authority.* xVnd her act, with her husband's authority, binds him ; 
 he cannot recall it after it has been executed.'' Her act binds him on 
 the theory of agency, and not on the ground of the marital relation 
 subsisting between them.' 
 
 Under our recent remedial statutes a married woman may now take 
 and acquire a separate property, and enjoy and transfer the same as 
 freely as an unmarried woman ; and she may carry on any business on 
 her separate account. Entering upon a business, she acts for herself ; 
 
 1 Slocum V. Hooker, 13 Barb. 536. This case involves both of the rules referred to. 
 See also, Blake v. Supervisors of L. Co., 61 Barb. 149. 
 
 2 Palmer v. Miller, 25 Barb. 399; the case of a deed of premises covered by a morf^ 
 gage made by the infant. 
 
 2 Bartholomew v. Fennimore, 17 Barb. 428; Kitchen v. Lee, 11 Paige's Ch. 107; 
 Gray v. Lessington, 2 Bosw. 257; 33 Conn. 201. 
 * Merchants' Fire Ins. Co. v. Grant, 2 Edw. Ch. 544. 
 5 Chapin v. Shafer, 49 N". T. 407. 
 8 Goodwin v. Kelly, 42 Barb. 194. 
 
 ' Griffen v. Banks, 37 N. T. 621, 624; Edgerton v. Thomas, 9 N. T. 40. 
 « Kowing V. Manly, 49 N. T. 192. 
 
148 Law op Bailments. 
 
 she is treated as a /erne sole} And as she may make all manner of con- 
 tracts relating to the business, she can undoubtedly bind herself by a 
 pledge or mortgage of goods, to secure the payment of debts incurred by 
 her in the Ihie of the business.^ As she may charge her separate prop- 
 erty as surety for the debt of her husband, there is no reason why she 
 may not directly pledge her goods or chattels for his debt.^ Under the 
 first statute, a married woman was empowered to take and hold property 
 to her sole and separate use, and convey the same ; she was not in terms 
 authorized to bind herself by contract ; and though her separate prop- 
 erty was a legal estate, her engagements in reference to it were neces- 
 sarily enforced on principles of equity.^ Under the more recent statute, 
 she may also acquire property from her earnings or business, and m:iY 
 make sales and transfers of the same, and may carry on any business 
 on her separate account ; and is liable on her contracts m the business, 
 and for the manner in which she transacts her business, like an unmarried 
 woman. ^ Under still more recent statutes a married woman may con- 
 tract to the same extent, with like effect and in the same.form as if 
 unmarried, and she and her separate estate will be liable thereon 
 whether the contract relates to her separate estate or business or other- 
 wise, and whether it purports to charge her separate property or other- 
 wise.' 
 
 § 191. II. Ilii/Jit to mahi a Pledyn. It is of course necessary that the 
 person making a pledge of goods as security for a debt should own them, 
 or at least have the authority to deposit them m pledge. The contract 
 passes a certain interest or special property in the goods to the pledgee ; 
 and the pledgor impliedly stipulates that he possesses the right which 
 he assumes to transfer.' To the extent of that right or interest, he in 
 fact warrants the title as much as does the vendor on an absolute sale ; ^ 
 especially where the debt is contracted at the time the pledge is deliv- 
 ered. If he undertake to pledge property that 1 x.'Ioii-s to another, with- 
 out his consent, he cannot afterwards, so long as the owner does not 
 
 1 Lindner v. Soliler, 51 Barb. :;2:i; Peak v. Lemon, 1 Lansing, 2[i."). See Anderson v. 
 Mather, 44 N. Y. 249. 
 
 2 Talmon v. Ilawxliurst, 4 Duer, 221. 
 
 3 Corn Exchango Ins. ( 'o. v. Babcock, 42 N. Y. 013. 
 
 " Ilauptman v. Catlin, 2J X. Y. 247; Tale v. Dederer, 18 X. Y. 21;:.; 22 X. Y. 450; 
 Ballin v. Dillayo, :J7 X. Y. :i5. See the statute of 1S4S as amended in 1S40. 
 
 6 Anderson v. Mather, 44 X. Y. 249; Eowe v. Smith, 45 X. Y. 2:»; Fairbanks v. 
 Mothersell, (;:) liaii.. 40ij; Warner v. Warren, 4U X'. Y. 22S. 
 
 « Laws of U:s4, Chap. ;;,S1, as amended by Laws of 1.s:l', Chap. 5'.)4. 
 
 ' Mails V. 'i'u\lor, 4(1 Penn. St. 460. 
 
 8 Burt V. Druvy, 4!) X. Y. 2s:J; Rew v. Barber, :; Cow™, 272, 2Sn; Defreeze v. 
 Trumper, 1 .Jolm. li. 274, 
 
Pledges ou Pawns. 149 
 
 intervene, claim to have it restored until his debt is discharged.^ So, 
 too, though he is not the owner at the time the pledge is made, if he sub- 
 sequently acquire the property, by what title soever, his ownership will 
 be 'deemed to relate back to the time of tlie contract, and the pledge 
 will stand good.^ Though the right of the true owner is not affected by 
 a pledge made without his consent, the party making the pledge will 
 not be permitted to assert his own want of title.' The civil and com- 
 mon law agree that an implied warranty is annexed to every sale of 
 personal chattels, in respect to the title of the vendor ; and the reason of 
 the rule applies to the case where there is a transfer of goods in pledge, 
 on the creation of a debt.^ 
 
 § 192. As no one can convey the title to another man's property with- 
 out his consent, so it is quite clear that, as a rule, he cannot pledge it or 
 encumber it without some authority.^ E. g.^ a partner cannot pledge 
 securities or goods belonging to the firm to secure the payment of money 
 advanced to him as an individual." And a trustee cannot pledge stocks 
 held by him in that capacity, to secure the payment of his individual 
 ■debt ; the act is unlawful, and the transfer of the scrip standing in his 
 name as trustee carries with it notice of his want of authority.' The 
 rule must be difEerent where the owner permits his stocks to be trans- 
 ferred to another and held by him as the apparent owner, under a secret 
 trust ; because in this case the owner enables the trustee to appear with 
 the title standing in his name, and to sell the stock as his own. And 
 after he thus sells the stock or pledges it for an advance of money, the 
 honest purchaser or pledgee is protected, while the party who takes the 
 stock in pledge or purchases it in bad faith, or with knowledge of the 
 facts, takes subject to the owner's title.' The same rule applies where 
 an agent to sell is entrusted with the title ; he has the power to sell in 
 
 1 He is estopped from setting up a title to the goods subsequently acquired. Gold- 
 stein V. Hart, 30 Gala. 372. 
 
 2 Code of Louisana, Arts. 3109 to 3114. 
 
 s Jarvis v. Rogers, 13 Mass. R., 105; Duell v. Cudlipp, 1 Hilt. 166. 
 
 * Defreeze v. Trumper, supra; 2 Bl. Comm. 471; Burt v. Dewey, supra; Mairs v. 
 Taylor, 40 Penn. St. 466. 
 
 « Swett v. Brown, 5 Pick. 178. 
 
 ° :Ex. parte McKenna, in re Mortimer, 7 Jur. N. S. 588. After a copartnership has 
 heen dissolved by the death of one of the partners, the surviving partner may borrow 
 money to meet the firm obligations and pledge the copartnership property for its re- 
 payment. Durant v. Pierson, 124 N. Y. 444, 452. 
 
 ' Shaw V. Spencer, 100 Mass. 382, 389. 
 
 8 Crocker v. Crocker, 31 N. T. 507; 28 How. Pr. 583 n ; 17 How. Pr. 504. See An- 
 derson V. Nicholas, 28 N. Y. 600; and Calais Steamboat Co. v. Van Pelt, 2 Black. 
 372. 
 
150 Law of JJailmk^tts. 
 
 violation of Ms instructions.^ And since a sale or transfer of stock is 
 usually made on the faith of the apparent title, the owner, rather than 
 an innocent purchaser or pledgee for present advances, should bear the 
 consequences of the agent's bad faith. Certainly we find few cases in 
 our reports where, under these circumstances, the owner ventures to. 
 prosecute his title as against such purchasers ; and many cases where 
 he pursues his remedy against his defaulting agent.^ 
 
 § 193. In the transfer of choses in action or securities, not negotiable,- 
 the rule is that the purchaser or assignee takes them subject to all 
 defenses, legal and equitable, existing in favor of the original debtor or 
 any prior party ; in other words, the assignee takes the exact interest 
 of his assignor ; ^ and a second assignee succeeds to all the rights and 
 becomes subject to all the disabilities of Ms assignor, to all the defenses 
 existing against him.* This being the general rule applicable to chosi-s 
 m action, that class of cases will hardly be much extended in which 
 the pledgee or purchaser is held to acquire the title discharged of a 
 secret trust : a class which stand upon the well established principle, 
 that innocent purchasers for value from an apparent owner, clothed 
 with the legal title, are to be protected. Sales and pledges of goods by 
 factors entrusted with documentary evidence of title are thus pro- 
 tected ; ^ and for a similar reason, a transfer or pledge of stocks, made 
 
 1 Parsons v. Martin, 11 Gray (ilass.), Ill; as was done in Clark v. Meigs, 10 Bosw. 
 337. 
 
 2 Markham v. Jaudon, 41 N. T. 235; Baker v. Drake, 58 N. T. 211. 
 
 'Bush V. Lathrop, 22 N. Y. 535; Briggs v. Langford, 107 X. Y. (jSO; Decker v, 
 Boice, 83 N. Y. 215; Davis v. Leopold, 87 N. Y. 620; Davis v. Bechstein, 69 N". Y. 
 440; Bennett v. Bates, 94 N". Y. 354, 363; Hill v. Hoole, 116 X. Y. 299; Greene v. 
 Warnick, 64 N. Y. 220. Latent equities ? See Reeves v. Kimball, 40 Jy". Y. 299. 
 Bush V. Lathrop has been criticised in subsequent cases, and so far modified as to ex- 
 clude from the operation of the principles there laid down the case of the purchase 
 in good faith of a non-negotiable instrument from the assignee of the real owner 
 upon whom he has by assignment conferred the apparent absolute ownership, 
 when such purchase has been made in reliance upon the title apparently acquired 
 by such assignee. This modification is placed upon the ground of estoppel ; and 
 it is held that the real owner has, by the act of investing another with the apparent 
 ownership of the property, estopped himself from disputing the title of one who there- 
 after acquires it in good faith from such assignee. See McNeil v. Tenth Nat. Bank, 
 46 N. Y. 325; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41; Armour v. Mich. C. E. 
 R. Co., 65 N. Y. Ill, 122. But with the exception mentioned the doctrine of the case 
 stands unquestioned. Fairbanks v. Sargent, 104 N. Y. 108. 
 
 * Mason v. Lord, 40 N. Y. 476, 4S7. See Fairbanks -i. Sargent, supra, and cases, 
 cited in preceding note. 
 
 5 Edwards on Factors and Brokers, §§ 45 to 57. Laws of 1830, Chap. 179, § 3. 
 To bring a case within the operation of the section cited, the factor or other agent 
 must be consciously and voluntarily " entrustel " with the possession of the docu- 
 
Pledges ok Pawns. 151 
 
 by an agent entrusted with the title, for money advanced upon them, 
 is uplield in favor of a party thus induced to act upon the written evi- 
 dence of title.^ It is hut just that the negligent or careless owner 
 should be left to his remedy against his unfaithful agent.^ Third parties, 
 acting on the indicia of title furnished by the true owner, should not 
 be deprived of securities so taken in good faith. 
 
 § 194. The general principle is that the person making a pledge can 
 convey to the pledgee no greater interest in the thing pledged than he 
 himself possesses. The exceptions to this rule only serve to make it 
 plain. £J. </., at common law a factor may deliver the goods entrusted 
 to him to a third person as his agent, with notice of and in order to 
 preserve his lien ; this being a continuance of the factor's possession.' 
 But the factor cannot by the rule of the common law pledge the goods 
 of his principal, even to the extent of his lien ;* he cannot transfer them 
 to a third person so as to create a privacy between him and the owner.' 
 Under the law as now modified by statute, the factor having the title 
 vested in him may pledge the goods for advances made in good faith, 
 on the strength of the written or documentary evidence of title.' Under 
 such circumstances the factor is deemed the true owner, and his pledge 
 of the goods for advances is held valid in favor of the party making a 
 loan on the goods, and taking them in possession as a security : ' that is 
 to say, the factor is deemed the true owner where he has written evi- 
 dence of the title, and the purchaser or pledgee deals with him in the 
 honest belief that he is the true owner.^ 
 
 ments or merchandise; and the section has no application whatever to a case ■where 
 the documents or goods are taken by trespass or theft, and the possession of the factor 
 or agent is from the beginning tortious, wrongful and unlawful. Soltau v. Gerdau, 
 119 N. T. 380; Collins v. Ralli, 20 Hun, 246; S. C. 85 N. Y. 637; Hentz v. Miller, 94 
 N. T; 64. See also, Dorrance v. Dean, 106 N. Y. 203; Kinsey v. Leggett, 71 N. Y. 395. 
 
 1 McNeil v. The Tenth National Bank, 46 N. Y. 325; S. C. 55 Barb 59. 
 
 2 Stenton v. Jerome, 54 N. Y. 480. 
 
 8 Urquhart v. Mclver, 4 John. E. 103; Warner v. Martin, 11 How. U. S. 209; Lans- 
 sat V. Lippincott, 6Serg. & Eawle, 386; Ludden v. Buffalo Batting Co., 22 111. App. 
 415. 
 
 " Kodrigues v. HefEerman, 5 John. Ch. 417, 429; Commercial Nat. Bank v. Heilbrou- 
 ner, 108 N. T. 439, 444. See Mechanics & Traders' Ins. Co. v. Kiger, 103 U. S. 352; 
 McCreay v. Gaines, 55 Texas, 485; Gray v. Agnew, 95 111. 815 
 
 6 Sally V. Rathbone, 2 Maule & Selw. 298; Moffatt v. Wood, Selden's Notes, Nos. 5, 
 14; Kennedy V. Strong, 14 John. E. 128; Buckley v. Packard, 20 John. E. 422; Wal- 
 ther V. Wetmore, 1 E. D. Smith, 722-25; Bonito v. Mosquera, 2 Bosw. 401, 427; this 
 case overruled on another point in Cartwright v. Wilmerding, 24 N. Y. 521. 
 
 Cartwright V. Wilmerding, supra; Fourth Nat. Bank v. American Mills Co., 137 
 TJ. S. 234. ' Pegram v. Carson, 10 Bosw. 505. 
 
 8 Stevens v. Wilson, 3 Denio, 472; 6 Hill, 512. 
 
152 Law of iiAiL.MiiXTS. 
 
 § 195. The statute specifies tlie circumstances under wliich the appar- 
 ent owner is to be deemed the true owner. 1. Tlie party in whose name 
 any merchandise is shipped witli tlie Dealer's consent.^ 2. The con- 
 signee having the bill of lading making the goods deliverable to him or 
 to his order.^ 3. The party holding the custom-house permit, indicating 
 ownership, and authorizing a landing of the goods from the importing 
 ship.^ 4. The party holding the warehouseman's receipt, an evidence 
 of title, which may be transferred by its delivery with an order thereon 
 for the goods, and with an authority to make the withdrawal entry at 
 the custom-house.* The object of the statute is to protect persons deal- 
 ing in good faith with apparent owners, and it specifies these several 
 evidences of title as documents on which it shall be safe to act ; acting 
 on which in good faith, the purchaser or pledgee is protected.^ Mere 
 possession by a factor does not give him the power to pledge or sell his 
 principaFs goods." Possession for the purpose of sale enables him to 
 dispose of the goods, and will usually enable him to pledge them for 
 advances.' It will certainly enable him to store the goods and take a 
 receipt for them, and thereon procure advances. 
 
 § 196. We have still another exception to the general rule, growiag 
 out of the peculiar qualities of commercial or negotiable paper. A note 
 payable to bearer, or to order and indorsed by the payee in blank, so 
 that it is transferable by dehvery, may be transferred or pledged for 
 present advances, at any time before it is due, by a party having merely 
 
 1 Edwards on Factors and Brokers, §§ 37-44. 
 
 2 Idem, §§ 45-5.3. 
 
 3 Idem, § 54. 
 1 1dem, § 55. 
 
 5 Dows V. Greene, 24 N. T. G.3S; 2 Bosw. 402, 429; Allen v. Williams, 12 Pick. 297: 
 Mottram v. Heyer, 5 Deuio, 629; Waldron v. Eomaine, 22 Jf. y. sgg. But to secure 
 protection to a person advancing money to a factor holding a bill of lading, it is re- 
 quisite that the advance shall he made upon the faith of the hill of lading and not 
 upon the representations of the factor. Moors v. Kidder, 34 Hun, 534; S. C. IOC 
 N. Y. 32; First Nat. Bank v. Shaw, 61 N". Y. 283; Kinsey v. Leggett, 7i'k.' Y.'387 
 395. 
 
 " ^^ckerson v. Darrow, 5 Allen (Mass.), 419; Cook v. Adams, 1 Bosw. 497; Moors 
 V. Kidder, :J4 Hun, 534, 536; S. C. 106 N. Y. 32; McCreary v. Gaines, 55 Texas, 485; 
 Soltau V. Gerdau, 110 N". T. 380, 397. 
 
 ' Pegram v. Carson, 10 Bosw. 505. A power to sell is not a power to pledge to 
 secure money borrowed. An agent to sell is not an agent to pledge. Henry v. Mar- 
 vin, 3 E. D. Smith, 71 ; Bonito v. Mosquera, 2 Bosw. 401. And a blank transfer of a 
 certificate of stock with irrevocable power of attorney to transfer, signed by the person 
 appearing by the certificate to be the owner, does not confer upon the holder apparent 
 authority as agent for such owner to pledge the stock as collateral (Merchants' Bank 
 V. Livingston, 74 N. Y. 223), though it does confer upon him the power to sell or 
 pledge it as owner. McXeil v. Tenth Xat. Bank, 4(5 X. Y. 325. 
 
Pledges oii Pawns. 153 
 
 the custody of the note. The same is true of a draft or hill of exchange. 
 The pledgee or transferee, taking the same for value, acquires the title 
 and may recover on the instrument.^ 
 
 The pledgee is protected under the same circumstances and on the 
 same principle ;is a purchaser of the paper.^ Where the instrument is 
 fraudulently diverted from the purpose for which it was made, or deliv- 
 ered in fraud of the owner as a collateral security, the transferee will 
 only acquire the title and the right to recover on the paper where he 
 parts with value when he takes it.^ He is to be protected as an honest 
 holder for value ; that is, where he has advanced money on the strength 
 of it, or incurred some obligation, or surrendered some security, or 
 entered into some new agreement giving time, as a consideration for 
 the paper.^ Some of the States go farther and permit the pledgee to 
 hold negotiable paper, railroad bonds payable to bearer, received in 
 good faith on a pre-existing debt^ — an extension of favor to this species 
 of security beyond what equity seems to call for. 
 
 § 197. The favor shown to negotiable paper is of long standing ; it 
 is actually treated as a species of currency. Chief- Justice Eteb : " For 
 the purpose of rendering bills of exchange negotiable, the right of prop- 
 erty in them passes with the bills. Every holder with the bills takes 
 the property, and his title is stamped on the bills themselves. The 
 property and the possession are inseparable. This was necessary to 
 render them negotiable ; and in this respect they differ essentially from 
 goods, of which the property and possession may be in different 
 persons. The property passing with the possession, it is admitted that 
 
 ^ Bank of Chenango v. Hyde, 4 Cowen, 567; Coddington v. Bay, 20 John K. 637. 
 2 Bank of N. T. v. Vanderhorst, 32 N. Y. 553, 557; Brookman v. Metcalf, 32 N. T. 
 391. 
 
 * Coddington v. Bay, supra; Stalker v. McDonald, 6 Hill, 93. See Comstockv. Hier, 
 73 N. T. 269; Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191; Davis Sewing 
 Machine Co. v. Best, 105 K. Y. 59. 
 
 * Edwards on Bills and Notes, 319-324, 688-691; 1 Parsons on Bills and Notes, 218- 
 228. Holders of bank bills and negotiable paper are entitled to the peculiar advan- 
 tages which the commercial law confers upon bona fide holders only when they have 
 purchased such paper in good faith, in the usual course of business, before matu- 
 rity, for full value, and without notice of any facts afEecting the validity of the paper. 
 Canajoharie Nat. Bank v. Diefendorf, 123 N. T. 191. 
 
 5 Colver V. Benedict, 18 Gray (Mass.), 7. Where a pre-existing debt has been actually 
 and absolutely extinguished in consideration of the transfer of negotiable paper, the 
 transferee is a holder for value within the rule protecting such a holder against prior 
 ■equities. Mayer v. Heidelbach, 123 N. Y. 332. See Brooklyn City & N. K. K. Co. v. 
 Nat. Bank, 102 U. S. 14, 31. It is otherwise where the note is taken as collateral 
 security for an antecedent debt, the transferee parting with no value therefor. Corn- 
 stock V. Hier, 73 N. Y. 269; Duncomb v. New York, etc., E. K. Co., 84 N. Y. 190. 
 
154 Law of Bailments. 
 
 a banker who receives indorsed bills from his customer, to be got when 
 due and carried to his account, may discount or sell them ; why may 
 he not pledge them ? Either is a breach of confidence reposed in him, 
 and he may sell, because the property has been entrusted to him ; and 
 he may pledge for the same reason ; for he who has the property has a 
 disposing power, and the law has not limited it to be used in any par- 
 ticular manner." ^ The justice was speaking of a pledge made for 
 present advances ; and it is still quite clear that the pledgee receiving 
 bUls or notes in pledge at the time the debt is contracted may retain 
 them as a collateral security ; he is to be protected as much as a pur- 
 chaser for value.^ 
 
 § 198. One who has an interest in goods for life or for years has a 
 present right of property in them, and may pledge them, but only to 
 the extent of his interest." Having possession of the goods, with a mere 
 lien upon them, such as the pledgee himself possesses, he cannot right- 
 fully sell them or again pledge them, separate from the debt on which 
 he holds them as collateral security. He cannot divorce the pledge 
 from the debt, which it is given to secure ; but he may transfer the 
 debt and give to the assignee the benefit of the pledge, the security for 
 its payment.^ By selUng or transferring the things pledged separate 
 from the debt, unless the sale is made in due form by way of foreclosure, 
 the pledgee renders himself liable for a conversion.'' He departs from 
 his contract ; he puts it out of his power to restore the pledge on pay- 
 ment of his debt — a thing which he cannot do with impunity. He has 
 the power to separate the pledge from the debt, and it has been held 
 that he has an interest capable of sale ; ^ on the analogy claimed to exist 
 
 1 Collins V. Martin, 1 Bos. & Pull. 648. 
 
 2 Park Bank v. Watson, 42 X. Y. 490; Miller v. Race, 1 Burr. R. 4.52; Grant v. 
 Vaughan, .3 Burr. R. 1.520; Peacock v. Rhodes, Doug. P.. (VjS; Lawson v. Weston, 4 
 Esp. N. P. R. .50. A surrender of securities is a parting with value, and enables the 
 pledgee to hold the paper. Chrysler v. Eenois, 43 N. T. 209; Pratt v. Coman, 37 N. T. 
 440. Merely taking the paper as a pledge on a prior debt does not enable the pledgee 
 to hold and recover on the paper. Lawrence v. Clark, 30 X. T. 128. The party 
 taking must act upon the security taken in pledge, in order to hold as pledgee for 
 value; Taft v. Chapman, 50 :N". Y. 445; and he must take without notice, that is, in 
 good faith and for value; Porter v. Parks, 49 N. Y. 564; and the original debt must be 
 legal; Richardson v. Crandall, 4S X. Y. 348. 
 
 s Howe v. Parker, 2 T. R. 370. 
 
 < Chapman v. Brooks, 31 N". Y. 75; Lewis v. Mott, 36 N. Y. 395, 401. .See Talty t. 
 Freedmans Savings & Trust Co., 93 U. S. 321. 
 
 6 Stearns v. Marsh, 4 Denio, 227, 232; Felt v. Hege, 23 How. Pr. 359, 362. The last 
 paragraph in the opinion, badly printed. See also, Stenton v. Jerome, 54 X. Y. 480. 
 
 «Bullardv. Billings, 2 Verm. 309; Saul v. Kruger, 9 How. Pi-. .509, 571; and see 
 Whitaker v. Sumner, 20 Pick. 399, where the debt was sold without the pledge. Iii 
 
Pledges ok Pawns. 15& 
 
 between Ms interest and that of a mortgagor of goods still ru possession. 
 But there is this difference between the two interests ; the mortgagor 
 sells, on a condition ; and the pledgor does not sell at all ; the mortgagor 
 retains the possession by the terms of the instrument, until a default is 
 made in the payment ; and the pledgee as against his debtor has but a 
 mere lien upon the goods, a right to detain them till his debt is paid, 
 with a final right to foreclose the lien ; his interest in the goods is 
 collateral to and dependent upon the debt. A sale or transfer of the 
 debt will ordinarily draw after it a collateral security ; ^ but will a sale 
 of the collateral draw after it the debt, especially where the debt largely 
 exceeds the value of the things pledged ? ^ 
 
 § 199. A mere equity of redemption under a chattel mortgage cannot 
 be attached or sold under an execution.' And as a lien is not the sub- 
 ject of a sale,* the pledgee of goods cannot separate them from the debt 
 and sell his interest in them, without losing his security ; and as he 
 cannot safely sell his interest, it is difficult to find a sound reason for a 
 practice allowing a sale of his interest on an execution against him. 
 The better practice would be, it seems, to reach his interest in the debt 
 by proceedings supplementary to the execution, as you reach any other 
 mere chose in action, treating the things held in pledge as they are, a, 
 mere incident to the debt.*" 
 
 Without having the rightful power to sell or to again pledge the goods 
 held as a security separate from the debt secured, the pledgee may pass 
 them over to another party to be held for his benefit ; ^ or he may trans- 
 fer them with the debt as a security for his own liability ; but may not 
 
 Weaver v. Danby, 42 Barb. 411, a manufacturer of timber furnished with funds to 
 purchase, and entitled to receive so much a foot on delivery, was held to have an in- 
 terest in the lumber liable to sale on execution. The purchaser under a contract for 
 real estate has no such interest. Griffin v. Spencer, 6 Hill, 525; 5 Selden, 45; and see 
 Herring v. Hoppock, 15 K. T. 409. 
 
 1 Merritt v. Bartholick, 36 N. Y. 44. 
 
 2 Ante, § 185. 
 
 8 Badlam v. Tucker, 1 Pick. 399; Champlin v. Johnson, 39 Barb. 606. The interest 
 of the mortgagor, the conditions of the mortgage being unbroken, may be sold. Hamll 
 T. Gillespie, 48 N. Y. 556. The interest of a judgment debtor in personal property 
 lawfully pledged for the payment of money or the performance of a contract or agree- 
 ment, may be sold in the hands of the pledgee by virtue of an execution against prop- 
 erty. See Code of Civil Pro. § 1412. 
 
 * McCombie v. Davies, 7 East, 5; Daubigny v. Duval, 6 T. E. 604. 
 
 ' Ingalls V. Lord, 1 Cowen, 240; Ransom v. Miner, 3 Sandf. 692; Hasbrouck v. Bou- 
 ton, 60 Barb. 413; 41 How. Pr. 208. 
 
 « This is often done. White v. Piatt, 5 Denio, 269; Hays v. Riddle, 1 Sandf. 248; 
 Button V. Arnett, 51 111. 198; Nash v. Mosher, 19 Wend. 431; Yates County Nat. 
 Bank v. Baldwin, 43 Hun, 136. 
 
15G Law of Bailments. 
 
 make any disposition of the pledge that will defeat or impair the orig- 
 inal pledgor's right to take hack his goods on pa3niient of his debt.^ 
 He cannot sell or pledge them as his own property, without losing his 
 security.'^ 
 
 § 200. An actual delivery or something equivalent is essential to 
 complete the contract of pledge : hence, while a strict technical pledge 
 cannot be made of goods yet to be manufactured, an agreement hypothe- 
 cating them as a security, will take effect as a pledge, as fast as they 
 are made." Like an assignment of moneys to be earned or of demands 
 that are yet to come into existence, the transfer takes effect upon them 
 as they come into being.* Though there cannot be a present grant of 
 an interest which may or may not accrue, there may be a pledge or an 
 assignment made of any interest in personal property.' And it seems 
 that even the naked possibility or expectancy of an heir to his father's 
 estate may be secured to a transferee by an executory contract, made in 
 good faith, and for a valuable consideration ; and that the agreement 
 will be enforced in equity.^ Though liable to be defeated, it is capable 
 •of being alienated ; ' and upon principle there appears to be no legal 
 reason to prevent a man from binding liimself by an executory agree- 
 ment to take effect and operate upon his personal estate at a future 
 time. The law works out the same thing in substance, where he con- 
 tracts a debt to be paid at any time after date ; it is collectible out of 
 his property, when it falls due. 
 
 § 201. The pledgee or lienholder may make any disposition of the 
 thmgs held in pledge or subject to his lien, consistent with the duty he 
 
 1 Lewis y. Mott, 36 N. Y. .31)5; Chapman v. Brooks, 31 X. T. 75; Jarvis v. Eogers, 
 15 Mass. 389, 408; Mann v. SMffner, 2 East, ry.VA; McCombie v. Davies, 7 East, 6; 
 Moses V. Conham, Owen, 123; Haskins v. Kelly, 1 Eobt. ICiO; Nash v. Mosher, 19 
 Wend. 431 ; Gallaher v. Cohen, 1 Brown Pa. 43 ; Lawrence v. Maxwell, 53 N. Y. 19. 
 
 - Dykers v. Allen, 7 Hill, 4!»7. The effect of a wrongful pledge upon relative rights 
 will depend upon the relation of the parties. Douglas v. Dudley, 48 X. Y. 688. See 
 Butts V. Burnett, 6 Abbott' sPr. X. .S. 302; New York, L. E. & W. K. E. Co. v. Davies, 
 38 Hun, 477. 
 
 3 Macomber v. Parker, 14 Pick. 407. A pledge ineffectual for want of delivery may 
 be validated by subsequent delivery. Parshall v. Eggart, 54 X. Y. 18 ; Macauley v. 
 Hopkins, 35 Hun, 556. 
 
 4 Field V. Mayor, etc., of New York, 6 N. Y. (2 Seld.) 179. 
 ^ Lawrence v. Bayard, 7 Paige Ch. 70. 
 
 •' Stover V. Eycleshimer, 46 Barb. 84; 3 Keyes, 620. 
 
 ' Moore v. Littel, 41 N. Y. 66. This case relates to estates in land ; it holds that 
 a grant " to A for life, and after his decease to his heirs and their assigns forever," 
 gives to A's children a vested interest in the land, and that the interest of each is 
 alienable immediately, though capable of being increased or lessened, or totally 
 defeated. 
 
Pledges ob Pawns. 157 
 
 owes to the owner or pledgor ; lie may transfer the possession subject 
 to his lien to a third person to hold until the lien is paid ; and he may- 
 make a sub-pledge of his demand with the goods, subject to the inter- 
 est of the original pledgor. But he cannot safely make any use or dis- 
 position of the things pledged inconsistent with the obligation he is 
 under to the owner or pledgor.^ 
 
 § 202. III. Suhjeit of Pledge. The contract of pledge in its earliest 
 use was confined to goods and chattels — things capable of an actual or 
 manual delivery. The early cases relate almost uniformly to the sim- 
 plest forms of property — chattels, plate, jewels, watches, wearing appa- 
 rel, articles of furniture, all that peculiar assortment of things deposited 
 under the stress of necessity in a pawnbroker's shop. The preamble to 
 the earliest English statute on the subject, describing the business and 
 the abuses to be reformed, does not allude to a pawn or pledge of any- 
 thing but tangible property ; ^ and while from the earliest times we find 
 the contract in use, it is noticeable that the transaction usually con- 
 cerns things capable of being actually delivered or deposited." By 
 degrees the contract has been extended in its application until it is now 
 used to cover any kind of personal property ; an extension that might 
 have been anticipated from the development of the law, from the man- 
 ner in which diverse rights of property spring up from the growth of 
 
 1 Duncomb v. New York, etc., R. E. Co., 84 K. T. 190, 208; Lawrence v. Maxwell, 53 
 N. T. 19; A^ashv. Mosher, 19 Wend. 4:31; Samuel v. Morris, 6 Carr. & Payne, 620; 
 Mount V. Williams, 11 Wend. 77; Baltimore, etc. , Ins. Co. v. Dalrymple, 25 Md.269. See 
 also Moore v. Hitchcock, 4 Wend. 292, where the llenholder, the maker of brick, was 
 held entitled to maintain trover against the Sheriff for levying upon and selling the 
 property in disregard of his rights, on an execution against the general owner. See C 
 Hill, 484; 1 N. T. 20 ; 11 N. Y. 501, 507; 25 N". Y. 348; 28 do. 574. 
 
 2 I. Jac. L Ch. 21. See also, 25 Geo. III. Ch. 48. 
 
 ' Eeference is here made to the first reported cases under the common law. In a 
 translation of Gentoo Laws, made at the instance of Warren Hastings, from the San- 
 scrit into the Persian, and from the Persian into the English language, laws of a very 
 ancient form and origin, we find a chapter entitled Of Lending and Borrowing, divided 
 into sections: 1, of interest; 2, of pledges, etc. And the contract is assumed to be a 
 deponit of some article as a security. An extract or two will show this, and also the 
 remarkable similarity in some of its particulars between ours and the most ancient 
 law: " If a man borrows money upon a deposited pledge, the son of his grandson must 
 discharge the debt." It does not outlaw. " If a man, who hath long since deposited 
 a pledge, should abscond or die, the creditor in the presence of the debtor's friends shall 
 produce the pledge, and ascertain its value ; after that he shall keep it by him ten days ; 
 and if within that space the debtor's heir does not come in and satisfy his claim, he 
 shall sell the article pledged, and take his own money, with interest, from the amount ; if 
 there be any remainder the creditor is not to keep it." The instances of pledge found 
 in the Mosaic law relate entirely to things movable, and actually dehYeivd.—E.rodii.'', 
 xxii. 26, 27; Dent. xxix. 6, 12, 13, 17. 
 
158 Law of Bailments. 
 
 commerce, from the employment of capital by corporate bodies, and 
 from the vast increase in the volume and variety of personal property 
 in modern times, as compared with the earlier stages of society. 
 
 § :^0:]. The rale that every kind of personal property may be pledged 
 has with us one exception; a pension certificate cannot be pledged or 
 mortgaged ; ' nor can any right or interest in any pension be pledged 
 or mortgaged. The general government has taken care from the begin- 
 ning that its pensioners shall receive and enjoy all pension moneys for 
 the support of themselves and their families. Substantially the same 
 provisions are found in all the statutes on the subject.^ The pension 
 cannot be alienated, nor can the money due or to become due to any 
 pensioner be attached, levied upon, or seized under any legal or equita- 
 ble process : the intention of the statute is that the pension shall enure 
 to the pensioner as a livelihood. 
 
 The policy of these acts of Congress is the same as that which under- 
 lies our exemption laws ; under which the protection and preservation 
 of the family, the primary community, against the improvidence or 
 misfortune of its head, are deemed so important as to justify a limita- 
 tion upon the right to dispose of property ; and under which a stipula- 
 tion waiving in advance the protection of the statute is held void, be- 
 cause designed to cUsappoLnt the intentions of the legislature.'' Upon 
 
 1 Payne v. AVoodhuU, 6 Duer, 169; Moffatt v. Van Doren, 4 Bosw. 609. 
 
 2 The Pension Laws of the United States, as revised and consolidated June 22, 1874, 
 contain tliese two sections; title .J7. "§ 474.5. Any pledge, mortgage, sale, assign- 
 ment or transfer of any right, claim or interest in any "pension which has been, or 
 may hereafter be granted, sliall be void and of no effect ; and any person acting as 
 attorney to receive and receipt for money, for and in behalf of any person entitled to 
 a pension, shall, before receiving such money, take and subscribe an oath, to be filed 
 with the pension agent, and by him to be transmitted, with the vouchers now required 
 by law, to the proper accotmting office of the Treasury, that he has no interest in such 
 money by any pledge, mortgage, sale, assignment or transfer, and that he does not 
 know or believe that the same has been so disposed of to any person." §4746fro- 
 vides a punishment for procuring or presenting false vouchers, etc. " § 4747. No sum 
 of money due or to become due to any pensioner shall be liable to attachment, levy 
 or seizure by or under any legal or equitable process whatever, whether the same 
 remains with the Pension Office, or any officer or agent thereof, or is in the course of 
 transmission to the pensioner entitled thereto, but shall enure wholly to the benefit 
 of such pensioner." See also, tlie exemptions provided for by § 1303 of the Code of 
 Civil Procedure. Yates County Nat. Bank v. Carpenter, 119 N. T. .5.50; Burgett v. 
 Fancher, 3.5 Hun, 647 ; Stockwell v. Bank of Malone, 36 Hun, 583. 
 
 8 Kneettle v. Newcomb, 22 N. T. 241); the waiver of the exemption given by statute 
 at the time the debt was contracted was held void. Crawford v. Lockwood, 9 How. 
 Pr. 547; Eecht v. Kelly, 82 HI. 147; Phelps v. Phelps, 72 111. 545 ; Curtiss v. O'Brien, 
 20 Iowa, 37l'> ; JXaxwell v. Eeed, 7 Wis. -58:!. See comment upon the rule in Shapley v. 
 Abbot, 42 N. Y. 443, 451; and in Wilcox ^. Hawley, 31 X. Y. 64'^, 053. The like 
 policy, founded in motives of hmnanity, prevailed at a very early day. For example. 
 
Pledges or Pawns. 159 
 
 views of policy and humanity the householder having a family is not 
 permitted to divest himself of the protection of the law ; and the pen- 
 sioner is not allowed to anticipate his living. But so far as his means 
 will permit, every man is bound to pay his debts ; and there is no law to 
 prevent him from paying his debt with money derived from any source, 
 or from depositing exempt property as a pledge for its payment.^ 
 
 § 204. Independent of the statute, a pension given for past services, 
 whether it be regarded as an indefeasible right, or as an allowance pay- 
 able during the pleasure of the government, is an assignable interest ; 
 it is quite distinguishable from the compensation presently accruing to 
 officers and soldiers for their services. The effect of an assignment by 
 an officer of his pay or salary yet to be earned would be prejudicial to 
 the public service ; it is therefore against the policy of the law to hold 
 it assignable.^ The half pay granted to an officer, contemplating a 
 possible recall to service at a future day, is treated in the same way as 
 his pay for present services.' The public has an interest in his life, 
 and is concerned in his reasonable support ; on this ground the statute 
 law often interposes to prevent the sale or assignment or pledge of a 
 pension.* 
 
 in the Mosaic law no one was permitted "to take a widow's raiment to pledge." 
 * * " No man shall take the nether or the upper millstone to pledge : forhetaketha 
 man's life to pledge." * * " When thou dost lend thy brother anything, thou shalt 
 not go into his house to fetch his pledge ; thou shalt stand abroad, and the man to 
 whom thou dost lend shall bring out the pledge abroad unto thee ; and if the man 
 be poor thou shalt not sleep with his pledge. In any case thou shalt deliver 
 him the pledge again when the sun goeth down, that he may sleep in his own raiment, 
 and bless thee; and it shall be righteousness unto thee before the Lord thy God." — 
 Beut. xxvi. 6, 10-13. 
 
 1 Frost V. Shaw, 3 Ohio St. 270. Exempt property may be transferred as security 
 for an indebtedness even after a levy thereon. Bishop v. .Tohnson, 15 State Eep. 579; 
 and see Livor v. Orser, 5 Duer, 501. To the rule that exempt property may be the 
 subject of a valid pledge there is one statutory exception. A pledge of exempt prop- 
 erty as security for a debt contracted for the purchase of intoxicating liquors is void. 
 Laws of 1842, Chap. 157, § 3. No pawn can be taken of any Indian within this State 
 for any spirituous liquor. Laws of 1813, Chap. 29, § 5 ; Laws of 1849, Chap. 420, § 2. 
 And it is also made unlawful for any white person under any pretense, or on any 
 account whatever, to receive from an Indian of certain tribes any article or articles 
 whatever by way of pawn or pledge. Laws of 1817, Chap. 143, § 1. 
 
 2 Bliss V. Lawrence, 58 N. T. 442, and cases there cited; Wells v. Foster, 8 Mees. 
 and Wels. 149; Field v. Chipley, 79 Ky. 269 ; Bowery Nat. Bank v. Wilson, 122 N. Y. 
 478; Billings v. O'Brien, 4 Daly, 556; Beal v. McVicker, 8 Mo. App. 202; Bangs v. 
 Dunn, 66 Cal. 72; Hill v. Paul, 8 CI. & Fin. 293; Cooper v. Eeilly, 2 Sim. 560. See 
 Thurston v. Fairman, 9 Hun, •")84. 
 
 8 Flarity v. Odium, 3 T. E. 681; Lidderdale v. Duke of Montrose, 4 T. E. 248; Stone 
 V. Lidderdale, 2 Anstr. 533. 
 * Ex parte Batline, LL. D. 4 Add. and Ellis, 690; Pridrty v. Eose, 3 Merrivale, P5, 
 
IQQ Law of Bailments. 
 
 § 205. It was formerly doubted whether incorporeal things, like 
 debts and scrip of stock, which cannot be manually delivered, could be 
 the proper subjects of a pledge— a doubt no longer, and now of no m- 
 terest except as it indicates the order in the growth of the law. For 
 it is at length perfectly settled that any legal or equitable mterest what- 
 ever in personal property maybe pledged; provided the interest can 
 be put, by actual delivery or by written transfer, into the hands or within 
 the power of the pledgee, so as to be made available for the satisfaction 
 of his debt. Shares of stock can be so transferred by an instrument in 
 writing, and thus made a collateral security for the payment of borrowed 
 money.i A negotiable note or bond may be so transferred by a simple 
 delivery ; being payable to bearer, or to order and properly indorsed, 
 a delivery places them in the power of the transferee.^ 
 
 § 206. The distinction between a mortgage and a pledge of personal 
 property is perfectly settled ; under a pledge the title does not pass, it 
 remains in the pledgor ; under a mortgage the title passes, subject to a 
 condition of defeasance. Plain as this distinction is, it requires some 
 discrimination to draw the line between a mortgage and a pledge of 
 choses in action, there being in each case a formal transfer of the prop- 
 erty. When the transfer is made as a mere security for a debt, it is 
 always a pledge ; if the transfer be made in terms to secure the payment 
 of moneys due, or if that be the fair interpretation of the transfer, it 
 creates a pledge.^ A written transfer of goods or chattels is interpreted 
 on the same principle ; it creates a pledge, where that appears to be 
 the intention of the parties ; and the circumstance that the value of the 
 goods exceeds the amount of the debt tends to show the intention of 
 the transfer.' 
 
 § 207. There is a contract in use in Louisiana known as an anticresis ; 
 
 102; Kow V. Dawson, 1 Ves. 331;. Davis t. Duke of Marlborough, 1 Swan, 70; Grenfell 
 V. Dean and Canons of Windsor, 2 Beaven E. 544. 
 
 1 Wilson V. Little, 2 Comst. (2 N. Y.) 443, 445; S. C. 1 Sand. R. 351; Eomaine v. 
 "\'an Allen, 20 X. Y. 309; 41 N. Y. 235, 241; Morris Canal & Banking Co. v. Fisher, 
 1 Stockt. R. 607. 
 
 2 HaysT. Eiddle, 1 Sandf. E. 24S; Bank ofthe State of X. Y. r. Vanderhorst, 1 Kobt. 
 i;. 211, holding that tlie j^ledgee receiving a note on a discount or loan is a bona fide 
 holder for value; S, C. :',2 N. Y. 553. 
 
 " McLean v. Walker, 10 John. 1',. 472, 474 ; Garlick v. James, 12 John. E. 146, 149; 
 Brownell V. Hawkins, 4 Barb. 491; Clark v. Henry, 2 T'owon, 324; Parsons v. Over- 
 mire, 22 111. 5S; Campbell v. Parker, 9 Bosw. 322; Kimball v. Hildreth, 8 Allen 
 (Mass.), 107; Gay v. Moss, 34 Cala. 125; Haskins v. Kelly, 1 Eobt. 160, 172; Wood- 
 wortii T. Morris, 5() Barb. 97; Mowry v. Wood, 12 Wis. E. 413. 
 
 ^ Bright V. Wagle, 3 Dana (Ky.), 252; Houser v. Komp, 3 Pa. St. 2118; Marshall v. 
 Williams, 2 Hayw. (N". C.) 405. See Barrow v. Pa.xton, 5 John. 1!. 258, and Brown v. 
 Bement, 8 John, E. 90, where a bill of sale was held a moii:,'aa;r. 
 
Pledges ok Pawns. 161 
 
 it is a pledge of immovable property, possessing some of the features 
 of a mortgage ; it is a conveyance of real estate, with a counter letter 
 or stipulation by the grantee to reconvey on payment of the money 
 loaned ; it gives the lender, the grantee, possession of the premises, 
 with the income or fruits arising from tlie property ; out of the income 
 the grantee is to pay the taxes and repairs and interest and to apply 
 the balance on the principal. The grantor's rights remain unimpaired, 
 until they are cut off by a sale under sentence of a coui-t.^ The in- 
 strument resembles one form of the mortgage, formerly in use under the 
 common law, namely, the vivum vadium or living pledge, under which 
 the mortgagee took and held possession until the money loaned was 
 paid out of the rents and profits of the property '' — a form of security 
 now unused, because unsuited to our modern habits.' 
 
 § 208. The common law does not enforce a contract of hypothecation, 
 distinct from a pledge or mortgage of goods or chattels ; certainly it 
 does not allow, as against creditors and third parties, the creation 
 of secret verbal liens, where the lienholder does not have or retain 
 possession of the property.* The hypothecation of a ship or cargo is 
 permitted upon reasons that do not affect ordinary dealings with 
 
 1 Code of Louisiana, Arts. 3102, 3143-3148; Livingston v. Story, 11 Peters, 351, 388. 
 
 » 2 Black. Comm. 137. Ante, §§ 177, 178, 187. 
 
 ' In Eoberts v. Sykes, 30 Barb. 173, 179, the court did not feel authorized to pre- 
 sume a pledge to have been made on an agreement that the pledgee was to hold until 
 paid out of the income from the pledge. 
 
 * Howes V. Ball, 7 Barn. «fe Cress. 481 ; 14 Eng. Com. Law, 218. A agreed to give B, 
 a coachmaker, lOOZ. for a coach, and to pay for the same by four bills of 25Z. each; and 
 that B should have a claim upon the coach until the debt was duly paid. Textekden, 
 C. J. : " The transaction amounted to a sale of the coach, so as to transfer the property. 
 That being so, the question is, whether after such a transfer of the property, the seller 
 can have any valid claim on the property so transferred. Hypothecation is not al- 
 lowed by the law of England, although in some parts of the Continent, not many years 
 ago, it was allowed." The stipulation was therefore treated as a mere license, valid 
 only as between the two parties to the contract. See "Wait v. Greene, 30 X. T. 556, 
 distinguished from cases of conditional sales in Ballard v. Burgett, 40 N. Y. 314, and 
 in Austin v. Dye, 46 N". Y. 500. A lien is a different thing entirely; it is a right to 
 hold or detain property : McCaffrey v. "Wooden, 62 Barb. 316 ; given back on a purchase 
 of goods, in writing, it is a chattel mortgage. Dunning v. Stearns, 9 Barb. 630. A 
 mortgage of a crop yet to be planted, made by the owner of the land, is held valid in 
 some of the States. "Watkins v. Wyatt, 9 Baxter, 250; Headrick v. Braltain, 63 Ind. 
 438; Eawlings v. Hunt, 90 ST. C. 270; Harris v. Jones, 83 N". C. 317; Minnesota Lin- 
 seed Oil Co. v. Maginnis, 32 Minn. 193; Ambuehl v. Matthews, 41 Minn. 537; Taylor 
 V. Hodges, 105 N". C. 344; Norris v. Hix, 74 Iowa, 524. See Cressey v. Sabre, 17 Hun, 
 120; McCaffrey v. "Wooden, 65 N". Y. 459. The owner of the land has a right to con- 
 tract for its cultivation, and may in advance fix the title to the produce by agreement. 
 Andrews v. Newcomb, 32 N. Y. 417. 
 
 11 
 
162 Law of Bailments. 
 
 personal property .^ The spirit and even the very letter of our statute 
 law holds every assignment of goods or chattels, by way of security, 
 void as against creditors ; and upholds the mortgage of chattels only 
 when it is properly filed, and is really and fairly given as a security; 
 and never when it is given merely as a cover and for the benefit of the 
 mortgagor.2 The lien having been once created ur good faith by a 
 delivery of the chattels, it will not be defeated by the lienholder's 
 permitting them to be used by the owner for a temporary purpose.^ 
 
 § 209. Mode of mal-irig a Pledge. Goods and chattels may be 
 pledged by delivering them to a creditor, as collateral security for the 
 payment of the debt due to him. An actual delivery completes the 
 contract."* "When the terms of the agreement are reduced to writing, 
 it is for the court to determhie their legal effect ; they create a pledge 
 when they deliver or give over the property as security for the debt, 
 expressly or impliedly reserving a right to redeem ; ^ and they create 
 -a mortgage when they transfer the general title, subject to a defeasance.^ 
 There is often, as we have noticed, but little real difference between a 
 contract which the law declares a pledge, and one which it adjudges a 
 chattel mortgage ; but this difference is highly important, on account 
 of the difference in the legal rights and remedies arising under them. 
 
 A verbal pledge, accompanied by a delivery of chattels, is valid ; and 
 the contract is to be proved by verbal testimony, showing the actual 
 transaction.' "Words alone will be sufficient to create a pledge, where 
 the intention is clear and the goods are already in the pledgee's posses- 
 sion ; ' as a gift may be consummated by mere words, where the sub- 
 ject of it is already in the donee's possession.^ The mode of the delivery 
 is not at all important, it may be made directly to the pledgee, or to a 
 
 1 Fontaine v. Col. Ins. Co., 9 .John. R. 29. 
 
 2 Edgell V. Hart, 9 N. T. (5 Seld.) 213; Ford v. Williams, 24 N". T. 3.59; Southard v. 
 Benner, 72 N. T. 424; Brackett v. Harvey, 91 X. Y. 214. 
 
 3 Hall V. Tuttle, 8 Wend. 3S1; Ferguson v. Union Furnace Co., 9 Wend. 345. See 
 Allen V. Spencer, 1 Edm. 317. 
 
 ■* Stearns v. Marsh, 4 Denio, 227. 
 
 5 McLean v. Walker, 10 .John. E. 471, 474; Brownell v. Hawkins, 4 Barb. 491. See 
 Parshall v. Eggart, .J2 Barb. 3(57; S. C. 54 N". T. 18; Bright v. Wagle, 3 Dana (Ky.), 
 2.52; Heyde v. Xick, 5 Leigh (Va.), 33(;. 
 
 6Bunaclengh v. Poolman, 3 Daly, 230; Langdou v. Bush, 9 Wend. SO; these are 
 border cases; they resemble a mortgage more than a pledge; Dunning v. Stearns, 9 
 Barb. 630. 
 
 ' Parsons v. Overmire, 22 111. ,5S; Milliken v. Dehon, 27 X. T. 365. So in respect to 
 chattel mortgages. Hall v. Tuttle, 8 Wend. 375; Ferguson v. Union F. Co. 9 Wend. 
 345. 
 
 8 Brown v. Warren, 43 lif. H. 430. 
 
 ■' Lydia Allen v. Cowan, 23 N. Y. 502. 
 
Pledges ui; Pawns. l&i 
 
 third person to hold for him.^ And in the case of heavy and cumber- 
 some articles, like logs lying in a boom, the delivery may be made with- 
 out moving them.^ The actual custody of the goods need not in all 
 cases be transferred to the pledgee ; it is not always necessary in a sale, 
 in order to transfer the title ; and it is quite evident that a delivery suf- 
 ficient to pass the title under a contract of sale must be sufftcient to 
 create a valid contract of pledge.^ A subsequent delivery, following a 
 contract of sale or pledge, will render it valid/ 
 
 § 210. The situation of goods or chattels can rarely be such as to 
 prevent the owner from pledging them. The goods being stored in a 
 warehouse, the deliverj"^ may be made by a written transfer, on the 
 warehouseman's agreement to hold the property subject to the order of 
 the transferee ; ^ and when the goods are in transit in the hands of a 
 carrier, the delivery may be made by a transfer of the bill of lading.* 
 The delivery is accomplished in these cases, by transferring to the 
 pledgee the means with the right to take the actual possession of the 
 goods. 
 
 The owner of goods, by permitting them to be shipped in the name 
 of another person, arms that person with the power to dispose of the 
 goods ; he enables him to take the bill of lading in his own name ; he 
 invests him with written evidence of title to the property ; and the law 
 protects a third party taking them in good faith as a pledge or security 
 for an advance upon them.' The effect is the same where the owner 
 
 1 Sumner v. Hamlet, 12 Pick. (Mass.) 76. See Macaiiley v. Hopkins, .35 Hun, 556. 
 
 2 Je-wett V. Warren, 12 Mass. 300; PJdder v. McKnight, 13 Jolin. E. 294. 
 
 s Hankins v. Baker, 46 N. T. 666; Winne v. McDonald, 5 Bosw. 130; 39 N. Y. 233. 
 
 4 ParsliaU v. Eggart, 54 IST. T. 18. 
 
 5 Pierce v. Gibson, 2 Ind. 408; Gibson v. Stevens, 8 How. U. S. 384; Griswold v. 
 Havens, 25 N. T. 595; Whitney v. Tibbits, 17 Wis. 359; Cartwrigtit v. Wilmerding, 24 
 K. Y. 521. Goods may be pledged by a mere delivery of a warehouse receipt without 
 indorsement. St. Louis Bank v. Eoss, 9 Mo. App. 399. The delivery and indorse- 
 ment of a warehouse receipt is a symbolical or constructive delivery of the goods. 
 Willets V. Hatch, 132 N. Y. 41, 44. 
 
 « Edwards on Factors and Brokers, §§ 41, 30; Durbrow v. McDonald, 5 Bosw. 130; 
 39 N". T. 233 ; 24 N. T. 521 ; Harris v. Birch, 9 Mees. & Wels. 591 ; Brent v. Miller, 81 Ala. 
 509 ; Douglass v. People' s Bank, 86 Ky. 176 ; Commercial Bank v. Pf eiffer, 108 N". Y. 242 ; 
 First Kat. Bank v. Kelly, 57 :S. Y. 34. The rule is well settled that property or goods 
 shipped by a bill of lading drawn to order may be transferred by delivery of the bill to 
 a third person without any indorsement. Bank of Eochester v. Jones, 4 N. Y. 497, 
 607; City Bank v. Eome, W. & O. R. E. Co., 44 N. Y. 136; Merchants' Bank v. Union 
 E. E. & Transp. Co., 69 N. Y. 373. 
 
 ' See 4 Geo. IV. Ch. 83; 6 Geo. IV. Ch. 94; 5 and 6 Vict. Ch. 39; and 3 E. S. of 
 K. Y. 7th ed. 22.J7; Laws of 1830, Chap. 170; also 4 X. Y. Statutes at Large, 461. 
 The first section of the New York statute enacts that, " Every person in whose name 
 any merchandise shall be shipped, shall be deemed the true owner thereof, so far as 
 
104 Law of Bailments. 
 
 sells goods, and allows the purchaser to ship them in his own name,, 
 before the price is paid.^ Fraud in the shipper's purchase of the goods, 
 sufacient to annul the contract as against him, will not, it seems, defeat 
 the party making advances on the strength of the title ; ^ hut where the 
 bill of ladmg is fabricated or procured on stolen receipts, it amounts to 
 nothing as a security for advances ; it is but an item of evidence to 
 establish a felony.^ 
 
 § 211. The factor's act, as we have said, specifies three instruments 
 as documentary evidence of title to goods, upon which third parties 
 may safely act in making advances upon the property ; namely, a bill 
 of lading, a custom-house permit, and a warehouse keeper's receipt.* 
 The bill of lading is the carrier's contract ; it states on whose account 
 and risk the goods are shipped, and this statement is evidence that the 
 person so named is the real owner ; as shipper he may transfer the bill, 
 and with it the goods which it represents ; or he can pledge the prop- 
 erty by a simple delivery of the bill, as security for the payment of a 
 draft drawn on the consignee. The carrier delivers on production of 
 the bill of lading, and where the shipper indorses upon it an order to 
 deliver to the consignee on payment of the annexed draft, he can only 
 receive the goods on making the payment thus called for."^ The delivery 
 of the bill, as collateral security on the discount of the draft, is more 
 than a pledge ; it is a transfer of the title to the cargo, in trust to sell 
 it and use the proceeds to pay the draft. 
 
 Duly issued on a shipment of goods, the bill of lading represents the 
 property ; and a transfer of it has the same legal effect as a transfer of 
 
 to entitle the consignee to a lien thereon: 1. For any money advanced, or negotiable 
 security given by such consignee, to or for the use of the person in whose name such 
 shipment shall have been made ; and 2. For any money or negotiable security received 
 by the person in whose name such shipment shall have been made, to or for the use 
 of such consignee." See Dows v. Rush, 2S Barb. 15"; S. C. 16 X. T. :)25; 24 X. T. 
 638; Blossom v. Champion, 28 Barb. 21T; Keyspr v. Harbeck, 3 Duer, .373. The title 
 cannot pass under a felony. Florence Sewing Machine Co. v. Warferd, 1 Sweeny, 433. 
 See Arraount v. M. C. R. E. Co., 6-J X. Y. 111. 
 
 1 Winne v. McDonald, 39 X. T. 233; Smith v. Lynes, •") N. Y. 44; Parker v. Baxter, 
 SO N. Y. .586. 
 
 - An honest purchaser for value from the fraudulent vendee acquires a good title; on. 
 this principle a pledgee for present advances is entitled to protection. Durbrow v. 
 McDonald, 5 Bosw. 130; Williams v. Lilt, 36 N. Y. 319; Barnard v. Campbell, .58 
 N. Y. 73. See Adams v. Bowerman, 109 N. Y. 23. 
 
 ^Browerv. Peabody, 13 X. Y. 121; The Schooner Freeman v. Buckingham, 18 How. 
 U. S. 182; Grant v. Norway, 10 Com. B. 665; Saltus v. Everett, 20 Wend. 207; Bassett 
 V. Spofford, 45 X. Y. 387. See Marine Bank of Buffalo v. Fiske, 71 X. Y. 353. 
 
 * See § 3 of the X. Y. Factors' Act, above cited. 
 
 '^ Bank of Rochester v. Jones, 4 N. Y. 407; The City Bank v. Rome, W ^.t O. R. K. 
 Co., 44 X. Y. 136; Petitt v. First, etc., Bank, 4 Bush (Ky.), 334; post, § 629. 
 
Pledges or Pawns. 165 
 
 the property. Hence, when the bill requires the carrier, as it often 
 does, to deliver the goods at the end of the voyage to the bearer, or to 
 the order of the shipper, or to his assigns, it declares on its face the 
 shipper's right of property and control over the goods ; ^ and it is daily 
 used by him in mercantile transactions as a collateral security for ad- 
 vances.^ The sliipper, being the owner, has control of the property ; 
 imtil he parts with the bill of lading, he has the constructive or legal 
 possession, and the right to the immediate actual possession ; and the 
 law allows him to pledge or dispose of the goods, subject only to the 
 right of the carrier to compensation for his services. 
 
 § 212. The shipper has the power to deal with the goods as his own; 
 he may therefore revoke a consignment after the bill of lading has 
 been signed, or he may draw on the consignee and transfer the bill to 
 secure the payment of the draft, and thus render the consignment con- 
 ditional upon the acceptance or payment of the draft. He may do this, 
 €ven where he is under an agreement to ship the goods to the consignee 
 on account of prior advances ; the agreement does not bind the goods.' 
 
 When the bill of lading is made payable to order, the party in posses- 
 sion of the bill duly endorsed is entitled to receive the goods ; he is the 
 person entrusted with the evidence of title, and the proper party to 
 enter. the goods at the custom-house.* Holding the title in this manner, 
 he can obtain advances on the goods ; assuming that the bill has been 
 duly transferred to him.^ Not bemg negotiable like a bill of exchange, 
 the bare custody of the bill (of lading) is not conclusive evidence of 
 title ; and, therefore, a misappropriation of the bill by a clerk wUl not 
 deprive the owner of his right of property." The intention of the statute 
 is to protect third persons dealing honestly with the consignee, en- 
 trusted with the title. ^ Making advances in bad faith, or with knowl- 
 edge of the facts, or under circumstances of suspicion, will not entitle 
 
 iHaillesT. Smith, 1 Bos. & Pull. 563; Nathans v. Giles, 5 Taunt. 588; Allen v. 
 Williams, 12 Pick. 297. 
 
 2 Craig v. Sibbert & Jones, 15 Penn. St. 238; Bank of Kochester v. Jones, 4 N. Y. 
 497; Lanfear v. Blossman, 1 La. Ann. K. 148. 
 
 * Caynga Co. National Bank v. Daniels, 47 N. Y. 631; Marine Bank of Chicago v. 
 Wright, 46 Barb. 45; Hauterman v. Bock, 1 Daly, 366. 
 
 * Brace's Warehouse Manual, 17. That property or goods shipped by a bill of lad- 
 ing drawn to order maybe transferred by delivery of the bill to a third person without 
 any indorsement, see Bank of Rochester v. Jones, 4 N. T. 497, 507; City Bank v. 
 Rome, W. & O. R. R. Co., 44 N. Y. 136; Merchants' Bank v. Union R. R. & Transp. 
 Co., 69 Js\ Y. 373. 
 
 s Lickbarrow v. Mason, 2"T. R. 63; 5 T. R. 367, 683; post, § 629. 
 6 Gurney v. Behrend, 3 Ellis & Black. 622; Zachrisson v. Aiman, 2 Sand. 68; Com. 
 Bank of Rochester v. Cole, 15 Barb. 506; Covill v. Hill, 4 Denio, 323. 
 ' Porter v. Parks, 49 N. Y. 564. 
 
166 Law of Bailments. 
 
 the pledgee to hold the goods ; it %vill not enable him to acquire any 
 greater interest in them than the pledgor possessed.^ 
 
 § 213. The consignee in possession of the bill of lading is presumed 
 to be the owner of the goods ; as a matter of evidence, the legal pre- 
 sumption is that he is the true owner, where the goods are placed at 
 his sole disposal.2 Between the parties this presumption of fact may 
 be overcome by proof, showing the actual title to the property ; as that 
 it was consigned for sale, under instructions binding the consignee as 
 soon as he accepts the goods." The same proof may be given in favor 
 of the consignor's creditors, with a view to reach his interest in the 
 property — an interest that may be attached subject to the consignee's 
 lien for advances.^ 
 
 § 214. It is to be kept in mind that the factor or commission merchant 
 cannot at common law legally pledge the goods of his principal, without 
 express authority ; that he cannot do so, even for the purpose of raising 
 money to meet his princiiDal's bills of exchange, drawn against a consign- 
 ment of the goods.^ It follows that a factor's pledge of the goods under 
 his control, however made, is ineffectual unless covered by the express 
 terms of the statute." The third section of the iSTew York statute apphes 
 only where the factor or agent is intrusted with the evidence of title, or 
 with the possession of merchandise, for the purpose of sale, or as secu- 
 rity for advances, or both. It does not apply where goods are stored 
 with or left in the possession of the factor, without authority to sell ; 
 or where the goods are committed to his custody for the purpose of 
 shipment or transportation.' 
 
 1 Commercial Bank of Eochester v. Cole, 15 Barb. 506; Easton v. Clark, 35 N. T. 
 225. See Farmers & M. >fat. Bank v. Erie K. Co., 72 N. Y. ISS; Dorrance v. Dean, 
 106 3Sr. T. 203. 2 Angell on Com. Carriers, § 497; Sweet v. Barney, 23 KT. 335. 
 
 3 Winter v. Colt, 7 N. Y. 288; Du Peirat v. Wolfe, 29 N. Y. 436. 
 
 * Patterson v. Perry, 5 Bosw. 518; Curtis v. Norris, 8 Pick. 280; Black v. Zacherle 
 & Co., 3 How. U. S. 483. 
 
 = Gill V. Kymer, 5 Moore, 503; Fielding v. Kymer, 2 B. & B. 639; Newsom v. Thorn- 
 ton, 6 East, 17; Guichard v. Morgan, 4 Moore, 36; Martine v. Coles, 1 M. & S. 140; 
 McCombie v. Davies, 7 East, 5; 3 Smith, 3. See Boyson v. Coles, 6 M. & S. 14; First 
 Nat. Bank of Toledo v. Shaw, 64 N. Y. 283, 298. 
 
 6 Hatfield v. Phillips,12 C. & F. 343; 14 M. & W. 665; Phillips v. Huth, C M. &W. 572. 
 
 ■ Conito V. Mosquera, 2 Bosw. 402, 429, 436; Wilson v. Nason, 4 Bosw. 155; Covia 
 V. Hill, 6 N Y. 374; Cook v. Adams, 1 Bosw. 497; Danbury v. Britton, 5 Scott, 665. 
 See Mooros v. Kidder, 34 Hun, 534; S. C. 106 N. Y. 32. The English Act of (i Geo. IV. 
 Ch. 94, as construed by the decisions, only rendered pledges effectual when made on 
 the specific document of title entrusted to the factor by the owner. The later Act of 
 5 and Vict. Ch. 39, is of broader scope ; but does not cover pledges for antecedent debts, 
 no actual advance being made at the time. Macnee v. Gorst, 4 L. K. Eq. 351; 15 W. 
 E. 1197. The New York Factors' Act, with some modifications, is a reproduction of 
 that of 6 George IV. First Nat. Bank of Toledo v. Shaw, 64 X. Y. 2s !. l".!S. 
 
Pledges oe Pawns. 167 
 
 § 215. As soon as the consignee receives the goods, the bill of lading 
 ceases to represent them ; it has accomplished the purpose for which it 
 was given ; and it can no longer be transferred as evidence of the title 
 to the goods. ^ On their arrival from abroad, the consignee holding the 
 bill of lading enters them at the custom-house, and procures from the 
 collector and naval officer of the port a permit to land the goods, which 
 is given on receipt of security for or on payment of the duties. On pre- 
 senting 'this permit to the inspector, the goods are landed and delivered. 
 A delivery order indorsed on the permit will give to the holder, exclu- 
 sively, the means and power of obtaining possession of the property.^ 
 It may, therefore, be assumed that the consignee may pledge the goods 
 for advances by a transfer of the custom-house permit, with an 'order 
 for their delivery to the transferee.' 
 
 § 216. When the duties are not paid, the goods pass into a bonded 
 warehouse, designated by the consignee ; and the warehouseman gives 
 a receipt for them, stating on whose account they are so received in 
 bond. This receipt now becomes evidence of the title ; the goods are 
 held as security for the payment of the duties ; the actual custody of 
 the property being separated from the legal possession. In this situa- 
 tion the holder of the receipt, the consignee or factor for sale, may 
 pledge the goods for advances or sell them, by a transfer with an order 
 indorsed upon the receipt for a delivery of the goods, accompanied by a 
 written authority to make the withdrawal entry at the custom-house. 
 Thus armed, the transferee has the exclusive means of reducing the 
 goods into his actual possession, on payment of the duties. The legal 
 possession accompanies the title, and passes to the transferee.* 
 
 The money or securities advanced by the pledgee must be given on 
 the faith of the title ; but it is not essential that the pledge should be 
 created in specific form, at the very time the advance is made ; it may 
 be perfected afterwards ; or the pledge may be first made, and the 
 money or security afterwards given.^ 
 
 § 217. Goods or grain in a private warehouse, for which the owner 
 
 1 Bonlto V. Mosquera, 2 Bosw. 401, 440; Hatfield v. Phillips, and Phillips v. Huth, 
 supra. 
 
 ^ Bonlto V. Mosquera, 2 Bosw. 441, and Bruce' s Warehouse Manual. , 
 
 ' The force of the permit is soon spent ; it is a voucher for the duties paid ; it author- 
 izes a landing of the goods; and it specifies the importer or consignee by name. 
 
 « Mottram v. Heyer, 5 Denio, 629; Waldron v. Eomaine, 22 N. T. 368; Dimham v. 
 Maun, 8 N. T. 508; Cartwright v. Wilmerding, 24 N. T. 521; Zachrisson v. Poppe, 3 
 Bosw. 171. 
 
 5 Jennings v. Merrill, 20 Wend. 9; Winne v. McDonald, 39 N. T. 233; Cartwright 
 V. Wilmerding, 24 N. T. 521, 533. See Voorhis v. Olmstead, 66 N. Y. 113; Knights 
 V. Wlffin, L. E. 5 Q. B. 660; Continental N. Bk. v. Nat. Bk., 50 N. T. 575. 
 
iijg ' Law of Bailments. 
 
 holds a receipt, may be delivered in pledge by a transfer, with an order 
 for the property ; the receipt is written evidence of title within the 
 meaning of the statute ; and a valid transfer of the goods, accompanied 
 with an order on the warehouseman for their delivery, is effectual to 
 render valid a contract of pledge. The delivery is sufacient. The trans- 
 feree takes the title in trust, and the possession follows the title ; cer- 
 tainly, where the transaction covers a specific parcel of goods.i In 
 what manner is this transfer to be made ? As a bill of lading 'may be 
 transferred, with the goods covered by it, by a simple delivery of it in 
 pledge, there does not seem to be any good reason to prevent a vaUd 
 transfer of the warehouse receipt in the same manner. The form of the 
 receipt is often such as to indicate an intention that it shall be so trans- 
 ferred.'' And though not drawn so as to caU for dehvery to the bearer, 
 it is at least as transferable as any chose in action ; ' which may be 
 transferred without any form of writing; as an equitable mortgage 
 may be created by a deposit of title deeds ; » and as a gift of a security 
 may be perfected without a written transfer.^ 
 
 In some of our business centers the custom is to receive grain into 
 large warehouses or elevators, unloading each car or vessel into a com- 
 mon mass, taking care to keep each grade of the grain by itself. For 
 each parcel received, the owners of the elevator give a receipt, specify- 
 ing the number of bushels, and the grade, and on whose account the 
 grain is so received, and that it is " subject to their order hereon." On 
 a sale or pledge of the parcel, the holder of the receipt indorses upon it 
 an order for the delivery ; thus placing the grain mider the control of 
 the transferee." 
 
 1 Cartwright v. Wilmerding, 24 N. T. .521, ."jSfi; Waldron v. Komaine, 22 N. Y. .368; 
 Mottram v. Ileyer, '> Denio, 629; Pierce v. Gibson, 2 Ind. 408. 
 
 2 Rice V. Cutler, 17 Wis. 051; WMtney v. Tibbitts, 17 Wis. 3-JU. There is no dis- 
 tinction in this respect between a warehouse receipt and a bill of lading. The indorse- 
 ment and delivery of a warehouse receipt is a symbolical or constructive delivery of 
 the goods to the transferee and vests the title to the goods in him. Willets v. Hatch, 
 132 N. T. 41, 44. 
 
 8 Petitt V. First, etc., Bank, 4 Bush (Ky.), ZU; City Bank v. Rome, W. & O. R. K. 
 Co., 44 N. T. 136; Luckey v. Gannon, 1 Sweeny, 12. 
 
 * Daw V. Terrell, 3:) Beav. 218; Keyes v. Williams, 3 Y. * C. 5.";; Williams v. Evans, 
 23 Beav. 229. 
 
 ^ Sessions v. Moseley, 4 Cush. 87; Bates v. Kempton, 7 Gray, .'!8:;; Brown v. Brown, 
 18 Conn. 310; Westerlo v. De Witt, :jij N. Y. 340. 
 
 ^ Whitney v. Tibbitts, supra; Russell v. Carrington, 42 X. Y. lis. lu this case 400 
 bushels of corn in an elevator were sold and paid for, and an order given on the 
 elevator for the same ; held that the title passed, and that the separation of the par- 
 cel from the common mass, undistinguishable in quality or value, is not necessary 
 to pass the title when the intention to do so is otherwise clearly manifested. The real 
 intent of the transaction is to be carried into effect. Kimberly v. Patchin, 19 N". T. 
 
Pledges ok Pawns. 169 
 
 § 218. The third section of our factors' act declares that the factor or 
 agent intrusted tvith the possession of any merchandise for the purpose 
 of sale shall be deemed the true owner, so as to give validity to his 
 contract for the sale or disposition of the goods for money advanced or 
 securities given on the faith thereof. In terms it gives the same effect 
 to the possession of the goods as it does to the possession of document- 
 ary or written evidence of the title. Possession, with authority to sell, 
 enables the agent to procure advances upon the goods.^ Possession 
 without, or after the authority has been withdrawn, does not enable 
 him to pledge the goods.'' And he cannot, without express authority, 
 pledge them as security for an antecedent debt. Acting without such 
 authority, he cannot rightfully pledge the property in any case for his 
 own benefit. 
 
 § 219. Shares of stock in a corporation are now, and have been for 
 many years, habitually pledged as collateral security for money loaned. 
 The pledge is made by a direct transfer of the scrip, in writing, with 
 an authority to effect a transfer in due form on the books of the cor- 
 poration ; and in his note for the sum loaned, the borrower further 
 authorizes the pledgee to sell the stock. The effect of the transaction is 
 not a mortgage, but a pledge of the stock to secure the prompt payment 
 of the money borrowed. On account of its incorporeal nature, prop- 
 erty in stocks cannot be otherwise delivered. A delivery of the scrip 
 alone is not considered sufficient, because it does not of itself enable 
 the pledgee to sell the stock and apply the proceeds to pay the debt ; ' 
 
 330. See Perkins v. Dacon, 13 Mich. 81; 7 N. T. 357; 9 Ad. & Ellis, 895. When the 
 delivery is required to satisfy the statute of frauds, on a sale, the order should be ac- 
 cepted or assented to by the warehousemen. Dixon v. Buck, 42 Barb. 70; Potter v. 
 Washburn, 13 Vt. 538; Barrows v. Harrison, 12 Iowa, 588; Biddle v. Bend, 6 Best & 
 ■Smith, 225; Gibson v. Stevens, 8 How. TJ. S. 384. 
 
 1 Pegram v. Carson, 10 Bosw. 505. But see Bonito v. Mosquera, 2 Bosw. 401; Mer- 
 chants' Bank v. Livingston, 74 N. T. 223, 228. 
 
 2 Nickerson v. Darrow, 5 Allen, 419; Fuentes v. Montis, 16 W. K. 900; 3 L. E. C. 
 P. 268; 37 L. J. C. P. 137; 18 L. T. N. S. 21. Affirmed on appeal, 17 W. E. 203; 38 
 L. J. C. P. 95; 19 L. J. N. S. 364; 4 L. E. C. P. 93. 
 
 3 Allen V. Dykers, 3 Hill, 593; S. C. 7 Hill, 497; Wilson v. Little, 2 N. Y. (2 Comst.) 
 443. The form of the note given by the borrower appears in both of these cases ; it is 
 very nearly the same now in use. In Allen v. Dykers the stock was transferred on the 
 books of the corporation when the note was given; this is not now the custom. In 
 Wilson V. Little the transfer was also made on the books of the company on the day 
 the loan was made. In the note now used the maker gives the pledgee authority to 
 sell at the Board of Brokers, N. Y. or at public or private sale. In support of the 
 doctrine stated in the text, see also, Nisbet v. Macon Bank & Trust Co., 4 Woods. C. 
 Ct. 464. 
 
 The possession of a blank transfer of a certificate of stock, with irrevocable power 
 of attorney to transfer signed Ijy the person who appears by the certificate to be the 
 
170 Law of Bailments. 
 
 and yet it is quite possible to pledge the stock, without giving to llic 
 pledgee every facility to dispose of it by a swift sale.^ A contract of 
 pledge also arises where a broker receives from a customer an advance 
 of money as a margin, and agrees to purchase and hold stocks for him 
 on speculation ; the broker to hold the stocks as a security for the pur- 
 chase money paid by him beyond the margin advanced. The risk of 
 loss is assumed by the customer ; the purchase is made on his behalf, 
 and the agent holds the title to the stock as security. In substance, 
 the transaction creates the legal relation of pledgor and pledgee between 
 the parties. The general title to the stocks is in the customer on whose 
 account the purchase is made ; and the broker is therefore bound to 
 hold the same subject to his principal's right of property, under the 
 contract.- 
 
 Shares of stock in a bank or banking association may also become 
 pledged to the corporation for the debts and liabilties of the shareholder. 
 Such a pledge arises where the charter or the articles of association 
 provide that the shares of its stock are to be transferred on its books, 
 and that they shall not be transferable unless the shareholder shall 
 first discharge all debts due by him to the bank. The effect of the pro- 
 vision is to pledge each shareholder's stock for any debt or liability 
 incurred by him to the corporate body ; and hence every purchaser of 
 the stock takes it subject to this lien.' A by-law of the association is 
 not effectual to create the lien ; clearly not where under the statute the 
 articles of association are to regulate the transfer of the stock.' 
 
 Under a direct pledge of stock, the owner making the pledge retains 
 the right to vote upon it in the election of directors of the corporation ; 
 
 owner, confers upon the holder the power to pledge or sell the stock, as owner (Mc- 
 Neil V. Tenth Nat. Bank, 46 N. Y. 325), but not as agent for the owner. Merchants' 
 Bank v. Livingston, 74 N. T. 223. 
 
 1 Com. Bank of Buffalo v. Kortright, 22 Wend. 348; Ex parte Willcocks, 7 Cowen, 
 402; Matter of Barker, 6 Wend. 809. 
 
 ^Markham v. Jaudon, 41 N. Y. 23-5; Horton v. Morgan, 19 N. Y. 170; Lawrence v. 
 Maxwell, 53 N. Y. 19; Baker v. Drake, 53 N. Y. 211; S. C. 66 N. Y. 518; G-illett v. 
 ^Vhiting, 120 X. Y. 402; Gouman v. Smith, 81 N. Y. 25. 
 
 i'Leggett V. Bank of Sing Sing, 24 X. Y. 283; Grant v. Mechanics' Bank of Phila., 
 11 Serg. & Eawle, 143; Union Bank of Georgetown v. Laird, 2 Wheat. 390; Bank of 
 TJtica V. Smallcy, 2 Cowen, 770; McCready v. Ramsey, 6 Duer, 574. See Driscoll v. 
 West Bradh.'y & C. M. fJo., 59 N. Y. 96. A pledgee of a certificate of stock which has 
 printed thereon a by-law that no transfer of the stock shall be made while the owner 
 is indebted to the corporation takes it with notice. State Savings Assoc, v. Nixon- 
 Jones Printing Co., 25 Mo. App. 642. See Laws of 1890, Chap. 504, § 26; Laws of 
 1892, Chap. 088, § 26. 
 
 *Bank of Attica v. Manufacturers' & Traders' Bank, 20 N. Y. 501; 34 N. Y. 30, 80; 
 13 N. Y. 599; Cole v. Ryan, 52 Barb. 168, 172; Rosenback v. Salt Springs National 
 Bank, 53 Barb. 495, 502. 
 
Pledges ok Pawns. 171 
 
 a right so evident tliat no question can arise in reference to it, where the 
 stock remains registered in the name of the pledgor.^ The contract of 
 pledge is entirely consistent with the owner's rights as a stockholder ; 
 until the pledge is rendered available by a foreclosure, he remains a mem- 
 ber of the corporate body, interested in its management.^ Appearing as 
 a stockholder on the books of the corporation, the inspectors are not at 
 liberty to inquire whether the stock has been hypothecated. ^ The inspect- 
 ors may require each member offering to vote to take and subscribe an 
 oath to the effect that he has not sold or otherwise disposed of his interest 
 in or title to any shares of stock in respect to which he offers to vote, and 
 that all such shares are still owned by him.* Formerly no person could 
 vote at an election of directors of a moneyed corporation on any shares 
 of stock which had been hypothecated or pledged as collateral security.* 
 But the statute containing this prohibition was repealed by the General 
 Corporation Law. 
 
 § 220. A direct transfer of the title to a security or chose in action 
 is perfectly consistent with a contract of pledge ; and will be so consid- 
 ered where the whole transaction shows that the transfer was intended 
 as a security, and does not amount to a mortgage or a sale.' In many 
 cases it is quite important that the holder should be invested with the 
 title ; and in some cases it is essential that he should hold the title in 
 order to reap the benefits of the security ; e. g.^ where a policy of insur- 
 ance against loss by fire is assigned as collateral security for the pay- 
 ment of a sum loaned on bond and mortgage, the assignment of the 
 policy is necssary to give the mortgagee the protection of the policy ; 
 and the custom is for the holder of the bond and mortgage either to 
 take a formal assignment of the policy, with the consent of the insurer, 
 or to have an entry made upon the policy making the loss, if any shall 
 happen, payable directly to the holder of the mortgage.' 
 
 1 JJe ■parte Willcocks, 7 Cowen, 402, 410; Matter of Jacob Barker, 6 Wend. 509; 
 Laws of 1892, Chap. 687, § 20. 
 
 2 Merchants' Bank v. Cook, 4 Pick. (Mass.) K. 405; 44 Md. 349. The qualifications 
 of members of a corporation to vote are now declared by the General Corporation Law, 
 See Chap. 35, § 20, General Laws; Laws of 1892, Chap. 687, § 20. 
 
 « Matter of Cecil, 36 How. Pr. 477. 
 
 *Laws of 1892, Chap. 687, § 22. 
 
 5 2 R. S. (7th ed.) 1869, §37. 
 
 'McLean v. Walker, 10 John. K. 471; Campbell v. Parker, 9 Bosw. 322; Dewey v. 
 Bowman, 8 Cala. 145. 
 
 'The mortgagee and his assignee have an insurable interest in the premises covered 
 by the mortgage. See Shearman v. Niagara Fire Ins. Co., 46 N. T. 526; Grosvenor 
 V. Atlantic Fire Ins. Co., 17 N. T. 391; Buffalo Steam Engine Works v. Sun Mutual 
 Ins. Co., 17 N. Y. 401. 
 
172 Law of Bailments. 
 
 § 221. There is nothing to prevent the owner from pledging an ex- 
 isting reversionary interest in chattels or securities ; e. g., a consignee 
 who procures advances on a consignment, by depositing the bUl of lad- 
 ing with the party making the advance, does not thereby preclude him- 
 self from making a further pledge of the same goods ; the first pledge 
 being for an amount which does not exhaust their value. The second 
 pledge is rendered effectual by a contract pledging the goods, with an 
 order on the first pledgee for the balance after paying the amount due 
 him ; his assent to the order will be sufficient.^ In like manner, where 
 stocks are held in pledge by a bank for a loan of money, there is noth- 
 ing to prevent the owner from making a further pledge of them to the 
 bank for additional advances, by a verbal contract. The existing situ- 
 ation dispenses with the necessity of any formal transfer.- 
 
 A bond and mortgage may be transferred, as a collateral security, 
 without making a formal written assignment of them ; that is to say, 
 by delivering them and receiving advances upon them. After that a 
 written assignment of the securities to a third party will convey the 
 title subject to the advances which have been made upon them.' A 
 delivery or transfer of the mortgage sejjarate from the bond amounts 
 to nothing ; since the mortgage is only a collateral to the bond debt it 
 is given to secure.* \ sale of the pledge, a chose in action, to a bona 
 fide purchaser for value, is so far effectual, that the- pledgor must tender 
 the amount of the original debt to the purchaser.^ 
 
 § 222. Negotiable notes, bills of exchange, and bonds issued by gov- 
 ernment or by private corporations in a negotiable form, are usually 
 pledged as collateral security, by a delivery of the mstrument so in- 
 dorsed, where that is necessary, as to vest the title in the pledgee. And 
 the circumstance that the title is in form transferred to the pledgee, does 
 not materially affect the contract of pledge ; the pledgee takes the title 
 in trust, to sell the bonds, they being usually bought and sold like 
 stocks, and to collect the negotiable notes or bills when they become 
 due, and apply the proceeds on the debt to secure which they were 
 given.' The contract of pledge may be valid and effectual where the 
 
 iPortalis v. Telley, 5 L. r.. Eq. 140; 37 L. J. Chanc. 139; 16 W. R. .J03; 17 L. T. 
 N. S. 344. 
 
 2 Van Blarcom v. The Broadway Bank, 37 N. T. 540. See Brown v. AYarren, 43 N. 
 H. 430; and also, Sanders v. Davis, 13 B. Mon. (Ky.) 432. 
 
 3 A mortgage may be assigned by a mere delivery. Runyon v. Mersereau, 11 John. 
 R. 534; Sweet v. Van Wyck, 3 Barb. Ch. 647; Haskins v. Kelly, 1 Eobt. 160, 171, and 
 cases there cited. 
 
 * Merritt v. Bartholick, 36 N. Y. 44. 
 
 6 Tally V. Freedman's Savings & Trust Co., 93 U. S. 321. 
 
 " Wheeler v. Newbold, 16 N. T. 392. 
 
Pledges oe Pawns. ITS 
 
 notes or bills are not properly indorsed to the pledgee ; the paper be- 
 ing delivered as a security.^ The trustee has the right to collect the 
 amount due on the security, in order that he may properly execute the 
 trust.^ 
 
 The bonds of a state or of a corporation, issued under the authority 
 of law and made payable to bearer, are negotiable in such a sense that 
 the purchaser takes the title by delivery with the rights of a bona jid& 
 holder.^ He is entitled to hold them, where he purchases them, or 
 makes advances upon them in good faith, and becomes the actual holder 
 of them.* The same rule must apply where bonds or stocks or coupons 
 are left and issued in such a form that they will pass from hand to hand 
 by delivery ; on the other hand, where they do not pass as negotiable 
 paper, the pledgee will only acquire the interest of the pledgor in the 
 security.^ 
 
 § 223. Where a pledge is fairly made, the pledgee does not lose his 
 lien by permitting the owner to take and use the property for a special 
 purpose ; as where the captaiu of a ship pledged his chronometer and 
 was permitted to use it for a voyage ; " or where the purchaser of per- 
 sonal property delivers it as security to a person who becomes his surety 
 for the purchase money, and he permits the purchaser to use it tempo- 
 
 1 Nelson v. Wellington, 5 Bosw. 178, 187; Nelson v. Eaton, 26 N. T. 410. As to effect 
 of pledge in due form, see ante, §§ 196, 197; Marine Bank v. Vail, 6 Bosw. 421; Brain- 
 ard V. N. Y. & H. K. E. Co., 25 N. Y. 496. 
 
 ^Flagg V. Hunger, 9 N. Y. 483, 492. 
 
 » Assumed in State of Illinois v. Delafield, 8 Paige, 527; S. C. 2 Hill, 159, 177; 
 Fisher v. The Morris Canal & Banking Co., 3 Amer. Law Reg. 423; Bank of Rome v. 
 Village of Rome, 19 N. Y. 20; Evertson v. Nat. Bank, 66 N. T. 14. It is the general 
 rule that the honds of railroad, manufacturing and other like corporations, payable to 
 hearer, issued for the.purpose of securing loans of money, are deemed negotiable, and 
 that the coupons attached thereto partake of the same character. But to give nego- 
 tiability to such paper it must provide for the unconditional payment to a person, or 
 order, or bearer, of a certain sum of money, at a time capable of exact ascertainment. 
 McClelland v. Norfolk Southern E. R. Co., 110 N. Y. 469. A purchaser for value of 
 negotiable bonds will be protected unless the circumstances are such that an inference 
 could be fairly and legitimately drawn that the purchase was made with notice of a 
 defe:;tive title in the seller or in bad faith. Dutchess County Mut. Ins. Co. v. Hach- 
 field, 78 N. Y. 226. There can be no hona fide holder of town bonds, within the 
 meaning of the law applicable to negotiable paper, where they have been issued with- 
 out authority, (Cagwin v. Town of Hancock, S4 N. Y. 532), unless the legislature has 
 so declared. Alvord v. Syracuse Savings Bank, 98 N. Y. 599. 
 
 * Birdsall v. Russell, 29 N. Y. 220. He cannot take as hona Ude holder, where he 
 takes with notice. Starin v. Town of Genoa, 23 N. Y. 439. 
 
 ^Culver v. Benedict, 13 Gray, 7; Hodges v. Shuler, 24 Barb. 68; S. C. 22 N. Y. 114; 
 Gorgier v. Mieville, 3 B. & C. 45 ; Lang v. Smyth, 7 Bing. 284. 
 
 fi Reeves v. Capper, 5 Bing. N. C. 136; 47 111. 53. 
 
174 Law of Bailments. 
 
 rarily.^ The pledgee must retain the possession ; he need not retain 
 the actual custody of the property, in order to preserve his lien. E. g., 
 where the pledgee of a bond delivers it to the pledgor to get and return 
 stock in exchange for it, he does not part ^'ith his title or possession ; 
 he may therefore maintain the action of trover against the pledgor for 
 the bond ; ^ he takes the property as an agent or special bailee, subject 
 to the order of the pledgee, and in subordination to the special prop- 
 erty.^ 
 
 The general rule is, that the possession must be taken and retained 
 in order to create and continue the pledge. The rule is properly en- 
 forced with some strictness in favor of creditors and third parties ; the 
 same reasons require the possession to uphold the lien, which apply 
 Avhere a bailee holds a hen on chattels for \i'ork and services.^ 
 
 § 224. Relation of Ph-ilfjeto Oriijinal Contract. A contract of pledge 
 is like a contract of suretyship ; it bears much the same relation to the 
 original debt. The original debt is the basis of the new contract ; it is 
 the consideration for the contract of pledge.'^ The original debt being 
 illegal, the law will not enforce a contract of suretyship to secure its 
 
 1 Ferguson v. Union Furnace Co., 9 Wend. 345; treated as a mortgage. 
 
 2 Hays T. Riddle, 1 Sand. 24S. 
 
 3 White V. Piatt, 5 Denio, 269; Way v. Davidson, 12 Gray (Mass.), 465; Coleman v. 
 Shelton, 2 McCord (S. C), Ch. 123; Cooper v. Ray, 47 111. 53; Hutton v. Arnett, 51 111. 
 98; Thayer v. Dwight, 104 Mass, 2.-)4. 
 
 * Walker v. Staples, 5 Allen (Mass.), 34. Bill of sale given of a carryall and chaise 
 as a security, held a pledge ; and being given back by the pledgee to the pledgor to let 
 on hire for his own advantage, with care, it was held that the pledgee thereby lost his 
 lien. Kimball v. Hildreth, 8 Allen (JIass.), 107. A bill of sale of a watch, amounting 
 to a pledge of it ; pledgee redelivered the watch, and no explanation being given, the 
 court held this a waiver of the lien: that the pledgee by relinquishing the possession 
 waives or loses his lien. Beeman v. Lawton, 37 Maine, 543 ; the possession must be 
 taken and retained in order to create and continue a pledge ; Russell v. Fillmore, 15 
 Vt. 130, 135. Treadwell v. Davis, 34 Cal. 601 ; Parshall v. Eggart, 52 Barb. 307 ; agreed 
 upon, it may be acquired afterwards ; S. C. .')4 N". T. 18. See Macauley v. Hopldns, 35 
 Hun, 550. Where the pledge is immediately returned to the pledgor, and he is per- 
 mitted to use the same (horse) as his own property, an attaching creditor will hold the 
 property. Barrett v. Cole, 4 Jones Law (X. C), 40. And a 6o)ici ^Repurchaser from 
 the pledgor in possession will hold the property. Smith v. Sasser, 4 Jones Law (X. C), 
 43. Held also in Bodenhamer v. Newsom, 5 Jones Law (S. C.), that the pledgee loses 
 his lien by giving up the property to the pledgor for a special purpose. But a pledgee 
 does not lose his lien where the pledgor has obtained the possession of the thing 
 pledged by fraud or false pretenses. Bruley v. Rose, 57 Iowa, 051; Ea^lon v. Hodges, 
 18 Fed. Rep. 077. The fact that the pledgor assists the jiledgee in taking care of the 
 pledged property after its delivery does not necessarily affect the pledgee's rights as 
 against the pledgor's creditors. Hilliker v. Kuhn, 71 Cal. 214. 
 
 ^ Jewett V. Warren, 12 Mass. 300. 
 
Pledges oe Pawns. 175 
 
 payment ; ^ and for the same reason it cannot enforce a contract of pledge 
 made to secure an illegal debt. In other words, the law must leave the 
 parties where it finds them ; since it cannot give to either party an aflr- 
 mative rehef where the pledge is made at the time and enters into the 
 original, the illegal contract.^ The party paying or advancing money 
 or property under an illegal contract is not allowed to recover it back ; 
 that is, the law does not interfere to compel a restoration.* 
 
 § 225. The law does not aid a party in the execution of an illegal 
 contract, and it does not uphold a collateral agreement designed to in- 
 sure its performance. On this account the assignment of an existing 
 valid bond and mortgage, made at the same time and to secure the ful- 
 fillment of an illegal contract, does not transfer the title ; and the assignee 
 will not be permitted to reap the advantages of the collateral security 
 by a foreclosure.* For the same reason, a new and subsequent contract, 
 which stipulates for the performance of the illegal agreement, is equally 
 illegal and void ; it is void when it is based upon or seeks to fulfill any 
 part of the original contract ; ^ and neither party can obtain the aid of 
 a court in its enforcement. The law cannot show any more favor to 
 the auxiliary than it does to the principal contract ; and it cannot suffer 
 itself to be evaded or subverted in any manner." 
 
 § 226. When a contract is not illegal in substance, it is not treated 
 as illegal and corrupt simply because it provides for a prohibited mode 
 of payment, or embraces an illegal stipulation in favor of one party, in no 
 way beneficial to the other. E. g., a deposit of money in a bank creates 
 a, legal contract ; and though the bank credit the amount in a pass-book, 
 illegally making it payable at a future day, the depositor may recover 
 back the money.' So where a bank of this State borrows money of a 
 
 1 Swift V. Beers, 3 Denio, 70; Tyler v. Yates, 3 Barb. 222. 
 
 2 King V. Green, 6 Allen (Mass.), 139. Held in respect to a watch given in pledge 
 for the hire of a horse for a pleasure drive on a Sunday. The debt is illegal and not 
 collectible. Way v. Foster, 1 Allen, 408. 
 
 3 Ball V. Gilbert, 12 Met. 397; Sampson v. Shaw, Exr. 101 Mass. 143. In this case 
 the coiirt held a contract to create a corner in a certain stock illegal, and that a party 
 to the contract, whose funds had been used in the transaction with his assent, could 
 not recover them back. 
 
 *De Witt V. Brisbane, 16 N. T. 508; Schroeppel v. Corning, 5 Denio, 230; Johnson 
 V. Bush, 3 Barb. Ch. 207; assumed in Kellogg v. Adams, 39 N". T. 28. 
 
 5 Gray v. Hook, 4 X. Y. 449. 
 
 ^Leavitt v. Palmer, 3 N. Y. 19; discussed and distinguished in Curtis v. Leavitt, 
 15 N". Y. 9, 101, 231; 17 jST. Y. 521; Sackett's Harbor Bank v. Codd, 18 N. Y. 240. 
 The first of these cases involve the character of our banking associations and the 
 effect of our restraining laws ; they do not depart from the familiar rules stated in the 
 text. 
 
 ^ White V. Franklin Bank, 22 Pick. 1.":. 
 
176 Law of Bailments. 
 
 foreign company and gives notes therefor, illegal by our law because 
 payable on time, and gives a pledge of stocks to secure the payment, the 
 lender, innocent of any intent to evade the law, may hold the pledge.^ 
 So where a sale of stocks, legal in itself, is made to a banking associa- 
 tion, and the seller receives therefor notes illegal simply because pay- 
 able on time, he may recover the value of the; stocks ; not being in pari 
 delicto, he may recover on an implied undertaking.^ The mode of pay- 
 ment is not of the essence of the contract ; it is more like a collateral 
 stipulation — a dead limb to be pruned away that the tree may live. 
 
 § 227. Money paid and securities given under extortionate contracts 
 may be recovered back, or the contract held void, as the case may re- 
 quire ; ° including in this class of contracts pledges illegally taken by a 
 public officer under color of his office.'' But when the parties meet on 
 equal terms, we assume it as quite clear on general principles, that a 
 party pledging goods as security for the performance of an illegal con- 
 tract, the pledge being made at the time and entering into the terms of 
 the contract, will not be assisted to recover back the pledge. The posi- 
 tion of the defendant is one of vantage, only because the law wiU not 
 give its aid to either party .^ When the pledge is made subsequently to 
 secure an illegal debt, it is without consideration; the pledgee can 
 hardly obtain the aid of law to defend his possession of the property ; 
 and it admits of some debate whether the pledgor should be allowed to 
 recover back the things pledged, without tendering the amount which 
 is equitably and justly dvie." No action at law being required to con- 
 vert the pledge into a payment, it would seem to follow that it should 
 be treated as a payment ; especially where the principal debt is justly 
 due, and vitiated only on grounds of prudential policy.' 
 
 Pledges given to secure the payment of a debt for money borrowed, 
 on a contract illegal because usurious, maybe recovered back under the 
 statute of this State in an action brought by the borrower, without ten- 
 dering the amount actually due. A purchaser or assignee of the pledge 
 
 1 Curtis Y. Leavitt, i:> N. Y. 9. 
 
 2Tracyv. Talmage, MN. Y. l(;2-i!18, and the cases there reviewed by Judges Sklden 
 and Comstock; Oneida Bank v. Ontario Bank, 21 N. Y. 490; City Bank of N. H. v. 
 Perkins, 29 N. T. 554. 
 
 ^Osborn v. liobbins, :!i; X. Y. .305. 
 
 < Richardson v. Craudall, .30 How. Pr. 134; 47 Barb. 335; S. C. 48 X. Y. 348. 
 
 5 Taylor V. Chester, Law Eep. 4 (,)ueen's Bench, 309; Causey v. Yates, 8 Humph. 
 (Tenn.), 605; King v. Green, Allen (Mass.), 140. 
 
 " King V. Green, supra; Jaques v. Golightly, 2 W. Bl. 1073; Smith v. Bromley, 
 Doug. 670, in note ; Scarfe v. Morgan, 4 M. & W. 281. 
 
 " Fanning v. Dunham, 5 John. Ch. E. 122. Equity gives relief upon equitable 
 terms. Williams v. Fitzhugh, 37 N". Y . 444. 
 
Pledges oe Pawns. 177 
 
 is not entitled to the same relief, where the pledge is made at the time 
 of the loan.i Independent of the statute, equity will not decree a re- 
 turn of the security unless the borrower returns what he has received.^ 
 Equity does not enforce a forfeiture : it grants relief in such cases only 
 on equitable terms.'' In an action at law, the securities given on a 
 usurious contract may in this State be recovered back under the statute ; 
 the action of trover may be maintained for them.^ 
 
 iScliermerliom V. Tallman, 14 N. Y. 93, 126, 131; Post v. President of Bank of 
 Utica, "7 Hill, 391; Eexford v. Widger, 2 N. Y. 131; Hartley v. Harrison, 24 N. Y. 
 170; Beecher v. Ackerman, 1 Robt. 30; Code of Civil Procedure, § 1911; Alden v. 
 Diossy, 16 Hun, 311; Smith v. Cross, 16 Hun, 487; Wheelock v. Lee, 64 N. Y. 242; 
 Dickson v. Valentine, 57 N. Y. Supr. Ct. 128. A devisee of lauds, subject to a mort- 
 gage executed by his testator to secure a usurious loan, cannot maintain an action to 
 cancel the mortgage without first paying or offering to pay the sum actually loaned. 
 Buckingham v. Corning, 91 N. Y. 525. 
 
 2 Fanning v. Dunham, 5 John. Ch. 122; Whittemore v. Francis, 8 Price E. 616; Scott 
 V. Nesbit, 2 Cox's C. C. 183. The security is void; the lender cannot recover on it. 
 Hammond v. Hopping, 13 Wend. 505, 511. 
 
 8 Livingston v. Harris, 3 Paige Ch. E. 528; Jackson v. Shawl, 29 Cal. 267. 
 
 * Schroeppel v. Corning, 6 N. Y. 107; Couslaud v. Davis, 4 Bosw. 619; Braynard v. 
 Hoppock, 7 Bosw. 151 ; S. C. 32 N. Y. 571. Our statutes against usury remain now 
 substantially as they stood before the revision of 1830; the changes proposed by the 
 revisors, which would have created a consistent and harmonious system, were nearly 
 all of them rejected by the legislature. The eighth section of the present act was 
 among the amendments then proposed and adopted; and this section, it is held, does 
 not abrogate the previously established principle, that on the filing of a bill of dis- 
 covery, alleging usury, the complainant must pay or offer to pay the principal, or the 
 sum actually lent. The latter clause in this same section, forbidding a court of equity 
 to require or compel payment on deposit of the principal sum as a condition of grant- 
 ing relief, applies only to cases where the complainant, although he can prove the 
 usmy without resort to the oath of the lender, has no opportunity of setting up the 
 defense in consequence of the nature of the securities given by him; as for in- 
 stance, a bond and warrant to confess a judgment, or a mortgage with a power 
 to foreclose under the statute. As a general rule, where the complainant has no legal 
 evidence of the usury, and seeks to compel the defendant to admit or disclose the fact, 
 courts of equity will not compel an answer upon oath, and thus force the defendant to 
 give testimony against himself, where his answer may subject him to a criminal pros- 
 ecution, to a forfeiture or a penalty. The plaintiff, in such a, case, is boimd to waive 
 the forfeiture and pay the amount actually loaned, not only because that is just and 
 equitable, but in order to guard against the possibility of the defendant's answer 
 being made the means of subjecting him to a loss in the nature of a forfeiture. 
 Livingston v. Harris, 3 Paige Ch. R. 528; .10 Wend. 588; 3 R. S. 73, 5th ed. ; Eexford 
 V. Widger, 2 N. Y. 131; Schroeppel v. Corning, 2 N. Y. 132; Williams v. Fitzhugh, 
 37 N. Y. 451; Cope v. AVheeler, 41 ]Sr. Y. 303. See Gerwig v. Sitterly, 56 N. Y. 214. 
 In Pennsylvania the lawful rate of interest for the loan or use of money in all cases, 
 when no express contract is made for a less rate, is six per cent, per annum. Act of 
 May 28, 1858, 1 P. L. 622. When a rate of interest for the loan or use of money ex- 
 ceeding that established by law is reserved or contracted for, the borrower or debtor 
 
 12 
 
178 Law op Bailments. 
 
 § 228. From motives of public policy several classes of contracts are 
 pronounced void by the statute of frauds, unless made in writing. In 
 one sense these contracts are illegal, unless they are made in writing : 
 illegal in the sense that they do not conform to the terms of the statute ; 
 not corrupt and illegal because they work a violation of the law. And 
 though such a contract cannot be enforced, the party advancing money 
 on it is not allowed to recover it back so long as the other party is 
 ready and willing to fulfill it on his part ; and he /.s allowed to recover 
 back the money so paid where the other party refuses to fulfill the 
 contract.^ Neither is allowed to maintain an action in affirmance of the 
 contract.'' And the party giving a pledge for the performance of the 
 
 cannot be required to pay the creditors the excess over the legal rate, and it is lawful 
 for the borrower or debtor, at his option, to retain and deduct the excess from the 
 amount of the debt ; and in all cases when the borrower or debtor voluntarily pays the 
 whole debt or sum loaned, together with interest exceeding the lawful rate, no action 
 to recover back the excess can be sustained unless the same is commenced within six 
 months from and after the payment. Excess of interest over six per cent, is the money 
 of the borrower, which, when received by the lender, he cannot retain, but holds for 
 the use of the borrower, and assumpsit will lie for it. 03 Pa. 108. As soon as the 
 borrower' s right to recover excess of interest accrues, he stands in the relation of 
 creditor to the lender for money had and received to his use. Case is a proper 
 remedy to recover excessive interest. 4s Pa. 130. The general rule as to the measure 
 of damages in an action of trover (CiO Pa. 408) undoubtedly is well settled to be the 
 value of the goods at the time of the conversion, to which maybe added interest to the 
 time of the trial, unless there may be some circumstances of oppression in the case, 
 when the jury may give more. Whenever there is a duty or obligation devolved upon 
 a defendant to deliver stocks or .securities at a particular time, and that duty or obli- 
 gation has not been fulfilled, then the plaintiff is entitled to recover the highest price 
 in the market, between that time and the time of the trial. The grounds of this ex- 
 ception are that such securities are limited in quantity, and cannot always be obtained 
 at any price, and are of a very fluctuating value. 4 Watts, 142. The pledgee has a 
 right to avail himself of the securities deposited with him by collecting the money on 
 choses in action, when due, and applying it to the payment of his debts ; and it is 
 usual for the creditor, when goods or stocks are deposited as collateral security, if the 
 debt is not paid when due, to avail himself of these deposits by sale ; and when a prom- 
 issory note is delivered to a creditor as collateral security, and is not paid when due, 
 he may sue upon it: and it is in the interest of the original debtor that he should do so, 
 since otherwise an available fund might be lost. A creditor is bound to account with 
 his debtor for the proceeds of the security, and cannot have double satisfaction. 63 
 Penn. St. lOS. When goods or securities are deposited as security for the payment of 
 a usurious debt, the creditor is entitled to hold them, and is obliged to surrender them 
 or account for them, on payment of the debt thereby secured, with lawful interest. 
 The action for a conversion of the things pledged may be brought within six years. 
 69 Penn. St. 408. 
 
 1 Green V. Green, 9 Cowen, 46; Abbott v. Draper, 4 Denio, 51; Pang v. Brown, 2 
 Hill, 4S5; Lockwood v. Barnes, 3 Hill, 128; Thomas v. Dickinson, 12 X. Y. :'.!U; 
 Mannen v. Bradberry, si Ky. 1.53. 
 
 - Baldwin v. Palmer, 10 N. Y. 232; Watkins v. Push, 2 Lans. 234. 
 
Pledges or Pawns- 179 
 
 contract on his part is entitled to recover it back the same as if it were 
 money paid thereon, where the contract is mutually rescinded, or where 
 the other party refuses to fulfill.^ 
 
 § 229. When the principal debt or obligation is conditional, the 
 pledge depends upon the same condition ; and it is not available tuitU 
 the debt itself matures.^ A defense against the principal debt, based 
 on fraud or duress, enables the owner to recover the pledge ; it dissolves 
 the tie by which the pledgee holds it.' A payment or tender of the 
 amount due accomplishes the same thing ; it discharges the lien, and 
 gives the owner the right to take back his pledge.* When the pledge 
 itself is obtained by fraud, the pledgee acquires no interest in it ; it may 
 be recovered from him in an action at law.' 
 
 § 2.30. In order to release a pledge, the pledgor must cancel or pay 
 the principal debt, with interest.^ To justify an action at law for the 
 things pledged, he must either pay or make a legal tender of the amount 
 due and demand the pledge ; ' and he ought to do the same thing before 
 bringing his suit in equity to redeem.^ In ordinary cases the pledgor's 
 remedy is direct and sufficient at law ; and he has no occasion to appeal 
 to a court of equity. Where it is necessary to take an account, with a 
 view to ascertain the terms on which a redemption should be allowed, 
 the pledgor is entitled to relief in equity." Hence where goods are 
 pawned as security on a running account, the pawnor may, after a re- 
 fusal of his offer to account with and pay the pawnee the amount to be 
 found due, file his bill for an accounting and redemption ; the pawnee 
 can neither defeat nor delay his right to redeem by refusing to account.^" 
 § 2.31. The creditor holding a pledge as collateral security for the 
 payment of a debt may bring his action to recover the amount due. 
 
 1 Burlingame v. Burlingame, 7 Cowen, 92 ; Eice v. Peet, 15 John. R. 503 ; Hellman 
 V. Strass, 2 Hilton, 9. 
 
 2 Code of Louisiana, Art. 3104; Dykers v. Allen, 7 Hill, 497. 
 
 3 Osbom V. Eobbins, 36 IST. T. 365. 
 
 ■•Haskuis V. Kelly, 1 Eobt. 160; Elliot v. Armstrong, 2 Blackf. 198; McLean v. 
 Walker, 10 John. R. 471; Lawrence v. Maxwell, 53 K. T. 19, 23; Wyckoff v. Anthony, 
 90 X. Y. 442; Mitchell v. Eoberts, 17 Fed. Eep. 776; Duncan v. Brennan, 83 N. T. 
 487; Cass v. Higenbotom, 100 N. T. 248; Norton t. Baxter, 41 Minu. 146. 
 
 5 Mead v. Bunn, 32 N. T. 275. 
 
 ^ Bigelow V. Young, 30 Georgia, 131; Hendrix v. Hannan, 19 S. C. 483; Hudson v. 
 Wilkinson, 61 Texas, 606. 
 
 ' Butts V. Burnett, 6 Abbott, N. S. 302; Bateman v. Pooler, 15 "Wend. 637; Strong 
 V. Black, 46 Barb. 227. 
 
 ^ Dunham v. Jackson, 6 Wend. 22. 
 
 8 Durant v. Einstein, 5 Eobt. 423, 436. See Robinson v. Hanley, 11 Iowa, 410; Dono- 
 hoe T. Gamble, 38 Cal. 340. 
 
 " Beatty v. Sylvester, 2 Nev. 228; Vaupell v. Woodward, 2 Sand. N. Y. Ch. 143. 
 
180 Law of Bailments. 
 
 The mere fact that he has taken a pledge to secure the debt does not 
 limit his remedy to recover it ; does not affect the remedy given him by 
 law, unless he thus limits or confines himself by contract.^ Nor will 
 the recovery of a judgment, or the issue of an execution upon it, release 
 the pledge, so long as the debt remains unsatisfied.^ The pledge is to 
 be treated consistently as a security for payment : unless there be a 
 contract to that effect, the pledgee is not obliged to sell it; he may rest 
 upon his security and leave his debtor to make his own arrangements 
 and pay the debt." 
 
 § 2.32. The relation of the subsidiary to the principal contract appears 
 in many ways : the extinguishment of the principal puts an end to the 
 subsidiary, because the first is the foundation of the second contract. 
 If a defense arises against the principal debt on the merits, it may be 
 used equally to liberate the pledge^ (an alleged defense is not suf- 
 ficient, it must be established). However valuable the pledge may be, 
 the creditor is entitled to nothing more than his debt ; ^ and he is not 
 allowed to hold it as security for any other demand." He holds the 
 pledge for his own benefit ; the contract does not create a trust for the 
 benefit of any other party.' The pledge is given to secure the debt ; 
 that is, to insure its actual payment ; hence the pledgor cannot recover 
 the pledge on the ground that the principal debt is barred by the 
 
 1 Whitwell V. Brigham, 19 Pick. (Mass.) 117; Ball v. Weytli, 09 Mass. 3-38; EMioh 
 v. Ewald, 66 C'al. 97. 
 
 2 Fishery. Fisher, 98 Mass. 303; Morse v. Woods, 5 N. H. 297; Chapman v. Clough, 
 6 Vt. 123; McCullough v. Hellman, 8 Oregon, 191. It is held in Iowa that if the 
 pledgee attaches the goods pledged as the pledgor's property, he abandons the lien of 
 his pledge. Citizens' Bank v. Dous, 68 Iowa, 460. 
 
 8 Badlam v. Tucker, 1 Pick. 400; Robinson v. Hurley, 11 Iowa, 410; Rozett v. 
 McClellan, 48 111. 345. 
 
 * Whitlock V. Stewart, 13 Ala. 790. In this case a man lent his note to the payee 
 and took a pledge to secure its pa;yment, and the payee lost it in gaming; being noti- 
 fied of this fact, it was held that the pledgee was bound to abstain from doing anything 
 to defeat the pledgor's remedy. 
 
 5 Jessup V. City Bank, 14 Wis. 331. 
 
 «St. John V. O'Connel, 7 Porter (Ala.), 466; Gilliot v. Lynch, 2 Leigh (Va.), 493. 
 Duncan v. Brennan, 83 N. Y. 4S7; Continental Nat. Bank v. Bell, 12:) N". Y. 38; 
 Wyckoff V. Anthony, 90 N. Y. 442; Vanderzee v. Willis, 3 Bro. Ch. 21; Jarvis v. 
 Rogers, l.") Mass. 389; Newman v. Greenville Bank, 67 Miss. 770; Masonic Savings 
 Bank v. Bangs, 84 Ky. 135; Woolley v. Louisville Banking Co., 81 Ky. 527; Fridley v. 
 Bowen, 103 111. 033; Talmage v. New York Bank, 91 N. Y. 531; San Antonio Nat. 
 Bank v. Blocker, 77 Texas, 73; Loyd v. Lynchburg Nat. Bank, 14 Va. L. J. 173. The 
 pledge may by agreement become a general security. Moors v. Washburn, 147 Mass. 
 844. 
 
 ' Peck V. Morrell, 26 Vt. 686. 
 
Pledges oh Pawns. 181 
 
 statute of limitations ; * the statute operating upon the remedy and not 
 upon the debt.^ 
 
 § 233. The delivery of a chattel as a pledge, in anticipation of a loan 
 of money to be made thereon, is strictly conditional ; it conveys no in- 
 terest until the loan is made. Unless the money is advanced, a refusal 
 to return the chattel is a conversion of it. A cause of action thus aris- 
 ing is assignable; but a specific sale of the chattel, after the conversion, 
 does not of itself transfer the cause of action. There must be a subse- 
 quent demand made by the purchaser.^ 
 
 A contract for a pledge, ineffectual for the want of a delivery of the 
 goods, is rendered valid by a subsequent delivery of them ; in the absence 
 of fraud, the pledgee first acquiring the possession, may hold the goods. 
 In other words, the contract of pledge is incomplete until the delivery 
 is made ; and in these circumstances there is nothing to prevent a cred- 
 itor from acquiring a lien upon the goods, and thus defeating the pledge ; 
 nor is there anything to prevent a completion of the contract of pledge 
 by a subsequent delivery.* 
 
 § 234. Pledgees Duty in Preserving. The pledgee impliedly stipu- 
 lates that he will take ordinary care of the things pledged. Since the 
 bailment is beneficial to the pledgee by securing the payment of his 
 debt, and to the pledgor by procuring him credit, the law prescribes 
 ordinary care as the measure of the bailee's duty in preserving the 
 property ; ° a rule prescribed by natural reason and enforced in our law 
 from the days of Bracton.' The bailment being beneficial to both par- 
 
 1 Jones V. Merchants' Bank of Albany, .5 Robt. 162; Roots v. Mason City Salt & 
 Mining Co., 27 W. Va. 483; Hudson v. Wilkinson, 61 Texas, 606; Eumsey v. Laidley, 
 34 W. Va. 721. 
 
 2 Pratt V. Huggins, 29 Barb. 277; Thayer v. Mann, 19 Pick. 535; Bank of the Me- 
 tropolis V. Gutschlick, 14 Petera, 19, 32. 
 
 3 Hall V. Robinson, 2 N. T. 293; McKee v. Judd, 12 N. T. 622; The People v. Tioga 
 Common Pleas, 19 Wend. 73. 
 
 * Parshall v. Eggart, 54 N. T. 18. A pledge comes under the statute against fraudu- 
 lent conveyances and contracts ; and the question of fraud is one of fact for the jury. 
 
 6 Arentv. Squires, 1 Daly, 347 ; Abbett v. Frederick, 56 How. Pr. R. 68; Cooper v. 
 Simpson, 41 Minn. 46; Willets v. Hatch, 132 N. T. 41; Cutting v. Marlor, 78 N. T. 
 454. 
 
 8 Bracton, 99 6. Henry de Bracton is supposed to have been a judge or justiciary. 
 He wrote his treatise, De Legibus et Consuetudinibus Anglice, as early as the reign of 
 Henry III. His quotations come down to the forty-sixth year of that long reign of 
 fifty-six years, which commenced in 1217. Almost nothing seems to be known of his 
 personal history, notwithstanding he held for a long period so high a place as one of 
 the authorities of the English law, and was cited, as late as the time of Lord Coke, as 
 the first source of legal knowledge. He is admitted to have been a master of the com- 
 mon law, and he quotes the Roman Code with great freedom; from which he is sup- 
 
182 Law of Bailments. 
 
 ties, the duty of the bailee in the keepLag of the property is substan- 
 tially the same as in a bailment for hire. He is bound to keep and pre- 
 serve the property with ordinary care ; that care which a prudent man 
 ordinarily takes of his own property. He is not bound for the exactest 
 care and diligence required of a borrower ; and he is liable for a greater 
 degree of care than the law exacts of a depositary without reward.^ 
 
 § 235. The pledgee is not liable for a loss of the pledge by fire or by 
 theft, where he has kept it with ordinary and reasonable care, consider- 
 ing the nature of the property. By itself, the fact of a loss by theft 
 does not render the pledgee liable ; it bears upon the question of diU- 
 gence ; it calls for some explanation ; the pledgee is liable where the theft 
 is occasioned by his negligence, and he is not liable where the property 
 is stolen without any want of due care on his part.^ 
 
 The pledgee is bound to exercise that sort of care of the goods which 
 a man of business takes of his own property of a hke kind ; he is bound 
 to employ the usual means for their safe keeping. And where he uses 
 the property in any manner, it is quite clear that he must take addi- 
 tional care to prevent loss or injury from such use.'* Usiag the pledge 
 without any express or implied permission, he ought to bear the risk of 
 all losses arising from his use of the property. But where the pledge 
 is of such a nature that the pledgee is at a charge for its keeping, as a 
 horse or cow, he may use the horse in a reasonable manner, or milk the 
 
 posed to have derived his clear, nervous , and expressive style. Many of our current 
 maxims came to us through him from the civil law. 2 Reeves' English Law, 88, 90; 
 2 Ld. Eaym. 909. See also, Lives of the Chief -Justices, by Lord Campbell, 1 vol. p. 78. 
 
 1 Erie Bank v. Smith, Eandolph & Co., .3 Brewster, 9; St. Losky v. Davidson, 6 Cal. 
 643; Commercial Bank v. Martin, 1 La. Ann. 344; Petty v. Overall, 42 Ala. R. 145; 
 Jenkins v. The National Village Bank, etc., 58 Maine, 27o. See Ouderkirk v. Central 
 Nat. Bank, 119 >f. Y. 203, as to the liability of a bank for the loss of bonds held as 
 collateral seciu'ity for discounts after the last note discounted has been paid. For a 
 case illustrating the liability of a depositary without reward, see Lancaster Co. Na- 
 tional Bank v. Smith, 02 Penn. St. 47; and for a case applying the rule of liability of 
 the borrower of bonds to be used as a pledge for advances, see Archer v. Walker, 38 
 Ind. 472. That the pledgee is liable for the same degree of care as a bailee for hire is 
 assumed in all the cases. Jenkins v. The National Village Bank, supra ; Feld v. 
 Brackett, 56 Maine, 121 ; Schmidt v. Blood, 9 Wend. 208 ; Bakewell v. Talbott, 4 Dana 
 (Ky.), 216, a peculiar case. 
 
 2 2 Kent's Conuu. 580, 581; per Chief-Justice Holt, 2 Ld. Eaym. 909; Jenkins v. 
 The National Village Bank, etc., supra, .j8 Maine, 275; Petty v. Overall, 42 Ala. E. 
 145; Abbett v. Frederick, 50 How. Pr. E. 68; Ouderkirk y. Central Nat. Bank, 119 
 N. T. 263. Where the goods are placed in a given store for safe keeping with a mutual 
 understanding, a removal of them by the pledgee will go far to establish his liability 
 for a subsequent loss. St. Losky v. Davidson, 6 Cal. 643. 
 
 3 Thompson v. Patrick, 4 Watts (Pa.), 414. 
 
Pledges oe Pawns. 183 
 
 cow in recompense for the meat.^ The use not bemg the object of the 
 contract, the pledgee has no implied permission to use a pledge for the 
 keeping of which he incurs no expense.^ 
 
 § 236. Where the goods are lost, it is incumbent upon the bailee to 
 account for his failure to restore them, by showing a loss by some vio- 
 lence, theft or accident ; this being done, the burden of proving a want 
 of due care rests with the bailor ; and he cannot recover unless the facts 
 and circumstances in evidence show a want of due care on the part of 
 the bailee, and a loss or injury arising therefrom.'' Where the bailee is 
 bound for ordinary diligence, and wholly fails to restore the goods, it is 
 incumbent upon him to show a loss under such circumstances as will 
 exculpate him ; and this sometimes casts upon him the burden of proof 
 upon the main issue in the cause.* But if the plaintiff's right to recover 
 depends iipon proof of a loss by the defendant's negligence, the affirma- 
 tive must be estabUshed by the plaintiff ; the law cannot presume the 
 fact in his favor, though the jury may find it from the circumstances 
 attending the loss.' 
 
 Proof of a loss by fire does not ordinarily raise a presumption of negli- 
 gence on the part of the bailee ; that being one of the casualties against 
 which most men guard themselves by insurance.* More intentional, if 
 not more habitual, care is generally taken to prevent losses by theft 
 and embezzlement ; and hence the omission of customary precautions in 
 the line of business affords some evidence of negligence ; such as the 
 failure to lock up the premises where the goods are stored, or the neglect 
 to secure valuable articles, negotiable bonds and securities in a place of 
 safety, or the neglect to adopt approved methods of guarding against 
 robbery and theft.' 
 
 § 237. The bailee receiving a benefit from his services, stands in the 
 relation of a trustee of the property and is bound to keep it with the 
 
 1 Per CWef-Justice Holt, in Coggs v. Bernard, 2 Ld. Eaym. 909, 917. 
 
 "The pledge is given as security; it does not imply any intent to give the pledgee 
 an indirect benefit; he must therefore account for whatever income he receives from 
 the pledge. Houton v. HoUiday, 2 Murphy, N. C. 111. 
 
 »Foot V. Storrs, 2 Barb. E. 326; Schmidt v- Blood, 9 Wend. 268. The bailee must 
 give some account of the property. Bush v. Miller, 1.3 Wend. 481. 
 
 * Arent v. Squires, 1 Daly, 847; Schwerin v. McKie, 5 Eobt. 404, 419. 
 ^Lamb v. Camden & Amboy E. E. & Tr. Co., 46 N". T. 271, 278. 
 
 * 46 N. T. 271, 278-282. Is a loss by fire on one's own premises presumptive evidence 
 of negligence ? See Judge Peckham's dissenting opinion, 46 N. Y. 285. 
 
 ' Schwerin v. McKie, supra, 5 Kobt. 405. The defendant, a warehouseman, failed 
 to deliver 52 boxes of cigars, part of a large parcel, and there was some proof of negli- 
 gence by omission of proper fastenings. See Erie Bank v. Smith, Eandolph <fe Co., 3 
 Brewster, 9. 
 
184 Laav of Bailments. 
 
 care and diligence of a provident owner. A trustee of personal prop- 
 erty, under a voluntary assignment to Mm, must exercise the same care 
 and attention which a prudent person or a man of reasonable and or- 
 dinary diligence would use for himself. The rule is not as it is some- 
 times stated to be, that the trustee must take precisely the same care 
 in behalf of his cestui que trust as he would do for himself. The rule 
 does not bend itself to the individual character ; and therefore an as- 
 signment is void which contains a provision exempting the assignee 
 from liability for any losses to the trust fund, unless the same happen 
 by reason of his gross negligence or misfeasance. The law prescribes 
 a more stringent rule of liability, and it refuses to uphold an assign- 
 ment designed to defeat a just rule of responsibility.^ It will not suffer 
 an insolvent to place his property in the hands of a trustee on such 
 terms. 
 
 Public policy does not prevent ordinary bailees from stipulating for 
 a.n increased or for a diminished liability ; on the contrary, it gives the 
 utmost freedom, within the limits of fair dealing. Xo other persons 
 being interested in the contract except the immediate parties, the law 
 allows them to stipulate for the manner in which the property shall be 
 kept or stored.^ It even allows a common carrier, whose duties are of 
 a public nature, to stipulate for a Uability less than that imphed by 
 law ; and these stipulations often place him in the category of a baUee 
 for hire, liable for ordinary care and diligence." But a stipulation by 
 an ordinary bailee, exempting himself from any care whatever, can 
 hardly be upheld ; it has the form of a contract, without its substance.* 
 
 § 2-38. When the promissory note of a third person is deposited by a 
 debtor with his creditor, as collateral security for a debt, the note is a 
 pledge ; the pledgee has a special property in the note, and a right to 
 receive the amount to become due upon it ; and in case of non-payment, 
 a right to collect the same by an action thereon against the maker.^ 
 The pledgee receiving it as security on an existing debt, cannot be re- 
 garded as a holder for value in the commercial sense ; but he has the 
 
 1 Litchfield v. White, 3 Sand. R. r^S; ,s. C. 7 X. Y (.3 Seld.) 438; Olmstead v. Her- 
 rick, 1 E. D. Smith, 310. 
 
 2 Conway Bank v. American Ex. Co., 8 Allen R. 512; Eastman v. Patterson, 3S Vt. 
 146; ante, § 48. 
 
 3 Transportation Co. v. Downer, 11 Wallace, 129; Clark v. Barnwell, 12 How. U. S. 
 272; French v. N". Y. & Erie R. E. Co., 4 Keyes, 108. 
 
 * Alexander v. Greene, 3 Hill R. 0; S. C. 7 Hill R. .j33; Smith v. N. Y. C. R. R. Co., 
 24 IST. Y. 222-251; Wooden v. Austin, 51 Barb. 11; .54 Barb. 559. 
 
 5 Bowman V. Wood, ir, Mass. 5.34; Tarbell -s. Sturtevant, 26 Vt. 513; Andros. Rail- 
 road V. Auburn Bank, 48 Maine, 335; Parwell v. Importers', etc., Nat. Bank, 90 N. T. 
 483; Wheeler y. Newbould, 16 N. Y. 392; Nelson v. Eaton. 26 N. Y. 410. 
 
Pledges oe Pawns. 185 
 
 right to recover on the note.^ He has the possession, and the maker 
 cannot safely pay it to any other party.^ The note being payable to 
 bearer, or to order and endorsed in blank, is transferable by mere de- 
 hvery so as to vest the legal title in the holder ; hence he may recover 
 on it the amount due.' 
 
 The pledgee has no right to compromise -with the maker of the note, 
 or surrender it for anything less than the amount due, or to dispose of 
 it in any other manner. He holds the note as a security, and the 
 money when collected or received upon it, as a substitute for the note, 
 upon the same terms, until his principal debt becomes due.* Like other 
 choses in action, bills, bonds, and mortgages, notes are to be collected ; 
 the pledgee cannot sell them at pubUc or private sale, unless he is spe- 
 cially authorized to do so; a usage to that effect is illegal.'^ And 
 though specially authorized to sell the note at public or private sale, 
 the pledgee may also sue and recover upon it in his own name.* 
 Having a right to collect, he has the right to recover on a chose in 
 action, in furtherance of the object of the trust.'' 
 
 § 239. The pledgor retains the right to negotiate or collect the note, 
 provided he discharge the lien of the pledgee before judgment ; * he 
 may transfer the note to a third person, subject to the hen, and that 
 person may maintain an action on it as indorsee in his own name ; but 
 he must redeem and produce the note before he can have a recovery, 
 because a judgment on it works a merger of the note ; the note is 
 merged in, and extiuguished by the judgment.' On this ground a 
 judgment against one of several partners on a promissorynote executed 
 by the firm, is held a bar to a subsequent action against the other 
 partners. It extinguishes the original debt, or merges it in the higher 
 
 1 Manhattan Co. v. Reynolds, 2 Hill, 140; Liggett Spring & Axle Co.'s Appeal, 111 
 Pa. St. 291. The pledgee is a holder for value when he receives it as a security on a 
 dresent loan. Bank of N. T. v. Vanderhorst, 32 N. T. 553. 
 
 2 President Bank of Poughkeepsie v. Hasbrook, 6 N. Y. 216. 
 
 'Bank of Charleston v. Chambers, 11 Eich. 657; Sheldon v. Middleton, 10 Iowa, 17; 
 Wright V. Boyd, 3 Barb. 523, 528; 15 Mass. 534; 2 Hill, 140; Bank of Chenango v. 
 Osgood, 4 Wend. 607-612; Flagg v. Hunger, 9 X. T. (5 Seld.) 483, 492; Jones v. Haw- 
 kins, 17 Ind. 550. 
 
 *GarlickT. Jones, 12 John. E. 145; Depru v. Clark, 12 Ind. 432; Livor v. Orser, 5 
 Duer, 501, 506. See Chapman v. Brooks, 31 K. T. 75; Comstock v. Hier, 73 N. T. 269; 
 Farwell v. Importers', etc., Nat. Bank, 90 N. Y. 483. 
 
 s Wheeler V. Newbould, 16 N. Y. 392; Strong v. National Mechanics' B. Asso., 45 
 N. T. 718; Joliet Iron Co. v. Scioto Fire Brick Co., 82 111. 584. 
 
 « Nelson v. Eaton, 26 N. T. 410. 
 
 ' Flagg V. Mimger, supra, 
 
 8 Fisher v. Bradford, 7 Greenl. 2S. 
 
 9 Thompson v. Hewitt, 6 Hill E. 2J4; Pierce v. Kearney, 5 Hill E. 82. 
 
186 Law of Bailments. 
 
 security.! Hence, to permit the pledgor or his indorsee to prosecute 
 the note deposited in pledge to judgment, without discharging the lien, 
 would be to permit him to wrest from the pledgee his security or in- 
 terest in the pledge.^ 
 
 § 240. The pledgee of indorsed negotiable paper has the right to de- 
 mand payment and to charge the indorsers by giving them due notice of 
 non-payment ; ^ and it is without doubt his duty to use all reasonable 
 care to charge them with notice. He alone has the right to demand 
 and receive payment ; and he has the custody of the paper. Under the 
 circumstances, no other person can practically present the paper ; it is, 
 therefore, the duty of the pledgee to take the necessary steps to charge 
 the indorsers.^ He impliedly engages to do so ; the same as a creditor 
 who receives notes for the i^rice of goods previously sold, or on an ex- 
 isting demand.^ An immediate notice to the debtor or to the pledgor 
 is not required; it is sufficient to give 1dm a reasonable notice of the 
 failure to obtain the money on the paper.^ 
 
 § 241. Securities and choses in action are often assigned or transferred 
 as collateral security, upon an agreement or trust making it the duty of 
 the transferee to collect the same and apply the proceeds upon the debt 
 thus secured. Under such a contract, the pledgee is bound for the 
 exercise of active diligence ; his duties are like those of a general as- 
 signee for the benefit of creditors ; and not unf requently an assignment 
 for the benefit of creditors operates like a pledge, being made primarily 
 to secure debts due to the assignee.' He may be rightfully vested with 
 a legal discretion, to be exercised in the compromise and collection of 
 debts, and in the sale and disposition of the assigned property ; ' he 
 
 iRobertson v. Smith, 18 John. E. 459; Olmstead v. Webster, 8 N. T. (4 Seld.) 413. 
 See Suydam v. Barber, 18 X. Y. 468, 470; Oakley v. Aspinwall, 4 Comst. 513; Wag- 
 goner V. Walrath, 24 Hun, 443. 
 
 ^ In a suit on a negotiable note, the plaintiff, in order to recover, must ordinarily 
 produce the note. He cannot otherwise prove its execution. 
 
 SBachellor v. Priest, 12 Pick. 399; Jones v. Fort, 9 B. & C. 764; 4 Man. & E. 547; 
 Tenant v. Strachan, Moody & M. 377; 4 Carr. & P. 31; Edwards on Bills and Notes, 
 495. 
 
 *root V. Brown, 2 McLean, 369; Eussell v. Hester, 10 Ala. 535. That the holder of 
 a note as collateral is not charged with the duty of an indorsee, see Kennedy v. Eosier, 
 71 Iowa, 671. 
 
 ^Tobey V. Barber, 5 John. R. OS; Jones v. Savage, 6 Wend. 65^; Dayton v. Trull, 
 23 Wend. 345. 
 
 6 Gibson v. Tobey, 53 Barb. 191, 199. 
 
 ' Brainard v. Dunning, 30 N". T. 211 ; Goddard v. Winthrop, S Gray, 180. See Vallance 
 V. Miners' Life Ins., etc., Co., 42 Pa. St. 441. 
 
 8 Townsend v. Steams, 32 N. T. 209, and cases there cited; Dow v. Platner, 16 N. T. 
 562. 
 
Pledges oe Pawns. 187 
 
 cannot be lawfully clothed with an absolute personal discretion, incon- 
 sistent with the nature of the trust.^ 
 
 The contract by which a single chose in action is transferred as 
 security for the payment of a debt is not governed by precisely the same 
 rules which apply to a general assignment for the benefit of creditors ; 
 it will therefore be held valid where it provides for the payment of the 
 expenses of the collection, the discharge of the debtor thereby secured, 
 and the return of the balance of the proceeds to the assignor.^ The 
 contract, being free from fraud, prescribes the duties and habilities of 
 the assignee ; it transfers tlie title.' For some purposes the assignee 
 may be regarded as the general owner, and as such notified to sue ; * 
 and still held liable to the assignor for the use of diligence in the col- 
 lection of the demand — liable according to the terms of his agreement, 
 or to the extent of the contract impUed from the nature of the transac- 
 tion.^ 
 
 § 242. What is the duty of the pledgee or party receiving bills and 
 notes or other choses in action as collateral security, in respect to their 
 collection? Is he bound to a prompt and diligent effort to collect them 
 by suit? He is clearly so bound, where he receives from his debtor a 
 third person's note past due, under a request that he shall collect the 
 same and apply the proceeds upon the original demand." In the absence 
 of any special agreement, his duty in the premises results from the sit- 
 uation in which he is placed ; he is bound to ordinary diligence in pre- 
 serving the legal validity of the pledge, and must when necessary take 
 active measures to collect of the parties to the collateral security.' 
 
 1 Barney v. Griflan, 2 N. T. 2 Comst. 365; Nicholson v. Leavitt, 6 N. Y. 2 Seld. 
 510; Brigham v. Tillinghast, 13 N. T. 215; Dunham v. Waterman, 17 N. T. 9; Nichols 
 V. McEwen, 17 N. T. 22. An unnecessary provision will not affect the assignment. 
 Casey v. Janes, 37 N. T. 608. 
 
 2 Smith V. Kipley, 33 Conn. 306. Not allowed in a general assignment. Barney v. 
 GrifSn, 2 N. Y. 365. 
 
 8 Harris v. Schultz, 40 Barb. 315; 56 Barb. 413. 
 
 * Pickens v. Yarborough, 26 Ala. E. 417. 
 
 6 Condin v. Jones, 23 Geo. K. 175; Powell v. Henry, 27 Ala. K. 417; Ward v. Mor- 
 gan, 5 Sneed E. 79; Williamson v. MeClure, 37 Penn. St. 402. 
 
 « Wakeman v. Gowdy, 10 Bosw. 208. 
 
 ' Jennison v. Parker, 8 Mich. 355; Lamberton v. Windom, 12 Minn. 232, 241; 
 Eoberts v. Thompson & Clark, 14 Ohio St. 1, 7; Lee v. Baldwin, 10 Geo. 208; Whitia 
 V. Paul, 18 E. L 40; Eumsey v. Laidley, 34 W. Va. 721; Harper v. Second Bank, 13 
 Lea (Tenn.), 678. It has been held that if by any fault of a creditor who holds collaterals 
 guaranteed by the debtor, the collaterals become worthless, the creditor must bear the 
 loss. Douglass v. Mundine, 57 Texas, 344. It has also been held that where the 
 payee of a note guarantees it and indorses it over to a savings bank as collateral, and 
 the latter holds it for a year and a half after it matures and until the maker becomes 
 Insolvent, the payee and not the bank must bear the loss in the absence of any re- 
 
188 Law of Bailments. 
 
 He is said to be liable under the rules of law applicable to an agency ; ' 
 his position is exactly analogous, and his duty may be likened to that 
 of a creditor holding a guaranty of a debt ; ordinarily, he is not obliged 
 by his duty to the debtor to take any active measures to collect on the 
 collateral ; the debtor's hability is not changed by the new security; he 
 remains the principal debtor, bound afBrmatively to pay his debt." In 
 equity the pledgee may reasonably be called upon to take measures to 
 preserve the value of the security or to render it available ; especially 
 under circumstances where his refusal to take such action would result 
 in a total loss of the pledge. Anticipating the failure of a party to the 
 collateral security, the pledgor must have the right, on fair terms, to 
 insist upon active measures to collect.^ A surety, though absolutely 
 bound to pay a debt, has such a right ; ^ and it cannot fairly be denied 
 to a pledgor, without opening the door to fraudulent dealings, where 
 some emergency renders active steps essential, and the pledgee is re- 
 quested to move in the premises.^ 
 
 § 243. Many decisions assume, without deciding it to be the duty of 
 a pledgee to hold and collect negotiable notes or other choses in action, 
 received as collateral security on a debt ; on the theory that the implied 
 understanding is, that the collaterals are to be made effectual as a pay- 
 ment of the debt. And although it cannot be afiirmed that a contract 
 of pledge does of itself oblige the pledgee to use active measures to col- 
 quest by tlie payee that the note shall be collected. City Savings Bank v. Hopson, 53 
 Conn. 453. If the creditor taking the notes of third persons as collateral agrees to 
 collect them and credit the amounts on the debt, and then allows them to become out- 
 lawed, he must account to the debtor for their loss. Semple ct Birge Manuf. Co. v. 
 Detwiler, 30 Kansas, IJSfi. But if the creditor makes no such agreement, and without 
 negligence on his part fails to collect the collaterals, he may still recover the amount 
 of his debt from the pledgor. Marschuetz v. Wright, 50 Wis. 175. In the absence of 
 any fault or negligence on the part of the pledgee, he is chargeable only with the . 
 amount collected on the collaterals. Henry v. Travelers' Ins. Co., 42 Fed. Eep. 363. 
 Only reasonable diligence is required of him. Chaffe v. Purdy, 43 La. Ann. 274. But 
 he cannot avoid liability for negligence in the collection by showing that he placed the 
 securities in the hands of attorneys of high standing for collection, and that the negli- 
 gence was the negligence of such attorneys. Plymouth County Bank v. Gilman, 6 
 Dak. 304. See St. Nicholas Bank v. State Nat. Bank, 128 N. Y. 26. 
 
 1 Lawrence v. McCalmont, 2 How. U. S. 426; Roberts v. Thompson, 14 Ohio St. 1. 
 
 2 Schroeppell v. Shaw, 3 Comst. (3 N. T.) 440; 5 Barb. 580. 
 
 ^ See circumstances disclosed in Lamberton v. Windom, supra; and Hayes v. Ward, 
 4 John. Ch. 123. A surety has such a right. Ellsworth v. Lockwood, 42 N. T. 89, 98; 
 Lewis V. Palmer, 28 X. Y. 271. 
 
 * Paine v. Packard, 13 John. K. 174. The rule is not to be extended. Wells v. Mann, 
 45 N". Y. 327. 
 
 5 Good faith and fair dealing are all that the pledgor can demand. Black Eiver Bank 
 V. Page, 44 N. Y. 453. 
 
Pledges or Pawns. 189 
 
 lect a chose in action held as a collateral ; it is quite clear that he must 
 do so, where it appears from the circumstances that the pledge was 
 made on that understanding, or where after some lapse of time such 
 measures become necessary to prevent a total loss of the security .^ 
 
 § 244. Of itself, the pledgee's omission for a number of years to sell 
 stocks, deposited with him as collateral security, is not regarded as ren- 
 dering him liable for their loss or depreciation. As the pledgor has at 
 any time the right to pay the debt secured by the pledge, and thus 
 repossess himself of the stock, he ought not to complain that the pledge 
 is retained for the exact purpose for which it was made. It is for him 
 to take affirmative action in the premises ; '■' and he can liberate the 
 pledge at any moment by paying the debt.' 
 
 § 245. 'Wliat Property in the Pledgor and Pledgee ; and resulting 
 Rights and Duties. The general property in chattels bailed under the 
 contract of pledge remains in the bailor, and only a special property m 
 them passes to the bailee.^ The bailor retains the title, and a right to 
 redeem by discharging the original debt or obligation ; and the bailee 
 acquires the possession, with a right to detain the goods until his debt 
 is paid. But the non-payment of the debt, even after it is due, does not 
 work a forfeiture of the pledge ; the title remains in the pledgor until it 
 is legally divested, either by a foreclosure in equity or by a sale on due 
 
 1 In Pennsylvania the creditor holding a collateral, must do whatever is necessary to 
 keep it alive. Hanna v. Holton, 78 Penn. St. 334. Wakeman v. Gowdy, 10 Bosw. 208. 
 In this case a note past due was received as a collateral security on a request to collect 
 it and apply the proceeds on the debt ; held that the debtor became a guarantor of the 
 collection. So that a suit became necessary under the decision in Craig v . Parkis, 40 
 N. T. 181. Wheeler v. Newbold, 16 N. T. 392. This case decides only the negative 
 proposition that commercial paper cannot be sold ; though it justifies the inference 
 that the paper ought to be collected. The following cases support the text : .Tennison 
 V. Parker, 8 Mich. 355; Lamberton v. Windom, 12 Minn. 232; Roberts v. Thompson 
 & Clark, 14 Ohio St. 1; Lee v. Baldwin, 10 Geo. 208; Lawrence v. McCalmont, 2 How. 
 U. S. 426 ; and the following must be accepted as qualifying it : Schroeppell v. Shaw, 
 3 K. Y. 446; S. C. 5 Barb. 580; Black Eiver Bank v. Page, 44 jS". T. 453; Wells v. 
 Mann, 45 IS". T. 327 ; directly in point ; Taggard v. Curtenius & Jones, 15 Wend. 155. 
 
 2 Taggard v. Curtenius, 15 Wend. 155; Eozett v. McClellan, 48 111. 345; Coming v. 
 Pond, 29 Him, 129. In the absence of any contract making it the duty of the 
 pledgee to sell within a specified time, the pledgee is liable only for neglect to exercise 
 ordinary care, and the pledgor cannot make it the duty of the pledgee to sell by merely 
 requesting or directing him to do so. Minneapolis, etc., Elevator Co. \. Betcher, 42 
 Minn. 210; Cooper v. Simpson, 41 Minn. 48. 
 
 ' Lawrence v. Maxwell, 58 N. Y. 19. The debtor can gain nothing by mere delay; 
 even the recovery of a judgment on the debt secured does not liberate the pledge till 
 the debt is paid. Fisher v. Fisher, 98 Mass. 303. 
 
 * Garlickv. James, 12 John. R. 147; Farwell v. Importers', etc., Nat. Bank, 90 N. Y. 
 483. 
 
190 Law of Bailments. 
 
 notice. Before giving sucli notice, tlie pledgee has no riglit to sell ; and 
 if he do so, the pledgor may recover the value of the pledge from him, 
 ^^'ithout tendering the debt ; because by the wrongful sale the pledgee 
 has incapacitated himself to perform his part of the contract, that is, 
 to return the pledge, and it would therefore be nugatory to make the 
 tender.^ 
 
 The mortgage of goods, with a stipulation that the mortgagor may 
 redeem them by the payment of a sum named on a given day, is a very 
 different contract. Plere the title passes, and the mortgagor reserves 
 only a naked right of redemption within the period agreed upon. As 
 soon as that is passed, the right of the mortgagee becomes absolute.^ 
 Where there is a sale of goods, delivered as a security for money to be- 
 come due, it is a mortgage and not a technical pledge ; and the right of 
 redemption does not contmue beyond the default made in payment.^ 
 
 1 Stearns v. Marsh, 4 Denio I!. 227; Cortelyou v. Lansing, 2 Caines' Cases in Error, 
 200. This case is cited with approbation in Hart v. Ten Eyclc, 2 John. Ch. 62, 101; 
 in McLean v. Wallcer, 10 .John E. 471, 474; in West v. Beach, 3 Cowen, 82, 83; in Mc- 
 Farland v. Wheeler, 26 Wend. 407, 475; in Huntington v. Mather, 2 Barb. 538, 542; 
 in Brownell v. Hawliins, 4 Barb. 491, 4!i3 ; in Milliman v. Neher, 20 Barb. 37, 40; in 
 Seaman v. Luce, 23 Barb. 240, 255; in Stearns v. Marsh, 4 Denio, 227, 231; in Wilson 
 V. Mathews, 24 Barb. 205, 297; in Roberts v. Sykes, 30 Barb. 173, 175, 177; in Hos- 
 Mns V. Kelly, 1 Eobt. 160, 172; in Millildn v. Dehon, 10 Bosw. 325, 328; in Eomaine 
 V. Van Allen, 26 X. Y. 3i)'.), 311; in Saul v. Kruger, 9 How. Pr. 569, 571; in Wilson v. 
 Little, 1 Sand. 351, 357; in Ogden v. Lathrop, 1 Sweeny, 043, 647; in Clark v. Finney, 
 1 Cowen, 681, 694; in Wheeler v. Newbold, 5 Duer, 29, 36. Judge Dueb here men- 
 tions the well-known fact that the opinion in Cortelyou v. Lansing was never actually 
 delivered; as the Chancellor stated in Barrow v. Paxton, 5 .John. K. 260. But that 
 circumstance has not ]5revented it from assuming its place as a leading authority, cited 
 constantly and in many other cases besides those above mentioned. The doctrine of 
 the text does not apply where the parties have stipulated that on default of payment 
 at the time specified the pledgee may sell the property pledged without notice. Wil- 
 liams V. United States Trust Co., 133 N. T. 660. Nor does it apply to a case where a 
 sale is made by the pledgee before the maturity of the debt secured under a stipulation 
 in the contract giving him the right to make such sale and to return like property to 
 the pledgor on payment or tender of the loan. Ogden v. Lathrop, 65 N. T. 158. See 
 also, Chouteau v. Allen, 70 Mo. 290. 
 
 2 Ackley v. Finch, 7 Cowen R. 290; Brown v. Bement, 8 John. R. 97. 
 
 8 Barrow v. Paxton, 5 John. R. 259 ; 8 John. R. 97. Taking a bill of sale of personal 
 property, absolute in terms, intended as a collateral security, is to be regarded as a pledge. 
 The radical distinction between a pledge and a mortgage is, that by a mortgage the gen- 
 eral title is transferred to the mortgagee, subject to be revested by performance of the 
 condition ; while in case of a pledge, the pledgor retains the general title in himself, and 
 parts with the possession for a special purpose. Walker v. Staples, 5 Allen (Mass.), 
 34. A transfer in form does not prevent the contract from being considered a pledge, 
 ■where it is made as a collateral security. Kimball v. Hildreth, 8 Allen, 167; Marshall 
 v. Williams, 2 Hayw. N. C. 4i)5. The essence of the contract and not its form deter- 
 mines its character. Bunacleugh v. Poolman, 3 Daly, 236. 
 
Pledges or Pawns. 191 
 
 § 246. The difference between a mortgage and a pledge of goods or 
 choses in action is marked and easily miderstood, but in practice it is 
 often somewhat difficult to decide whether the contract entered into is to 
 be treated as a mortgage or a pledge. The general distinction between 
 them is, that in a mortgage the title is conveyed with a condition of 
 defeasance, that is to say, a condition rendering the conveyance void, on 
 the payment of a certain sum or sums of money, on or before the 
 day agreed upon ; while in a pledge, the goods bailed are deposited as a 
 collateral security, and only a special property is transferred to the 
 pawnee, the general title to the property in the meanwhile remaining 
 with the pawnor.^ In respect to goods and chattels personal, this distinc- 
 tion is very plain ; but there is a large class of cases where the contract 
 still remams a pledge, notwithstanding the title is conveyed.^ Choses 
 in action cannot be otherwise delivered as a collateral security, and 
 hence as to these and such incorporeal property as cannot be passed 
 from one to another by delivery, the fact that the title passes does not, 
 as has sometimes been held, create a mortgage.^ Whether the contract 
 shall be held a mortgage or a pledge is not determined by that fact 
 alone ; the title must be conveyed in order to create a mortgage, but it 
 is not a mortgage simply because the title is conveyed. To create the 
 contract of pledge there must be a delivery of possession, or a convey- 
 ance of title, that draws to itself the possession ; while a mortgage of 
 chattels or choses in action is sometimes valid without such delivery.* 
 
 § 247. Though the transfer of stocks be absolute, stUl if its object 
 and character are qualified and explained by a cotemporaneous paper, 
 which forms part of the contract and declares it to be a deposit of the 
 stock as collateral security for the payment of a loan, and there is noth- 
 ing in the contract to work a forfeiture of the right to redeem or other- 
 wise to defeat it, except by a lawful sale under the power expressly 
 conferred in the agreement, the transaction will be regarded as a pledge. 
 The intention of the parties and the real effect of their agreement are 
 to be considered and respected in its enforcement.^ The use of the 
 terms, " I hereby pledge and give a lien on," in a contract giving secur- 
 ity upon a chattel for the payment of a debt on a future day, permitting 
 
 1 1 Cowen's Tr. 340, 3d ed.; 5 John. K. 258, 261; 5 Cowen E. 323; 2 Alk. E. 115. 
 
 2 Wilson V. Little, 2 Comst. R. 443. 
 
 ^ Huntington v. Mather, 2 Barb. E. 538. See Parshall v. Eggart, 52 Barb. 367; 54 
 X. T. 18; Stenton v. Jerome, 54 N. Y. 480: 
 
 * Allen V. Dykers, 3 Hill, 593, and 7 id. 498. 
 
 s Langdon v. Buel, 9 Wend. E. 80; 5 John. E. 258; 9 Wend. R. 345; Brown v. Be- 
 ment, 8 John E. 96; Ackley v. Finch, 7 Cowen E. 290. SeeBunacleugh v. Poolman, 3 
 Daly, 236; ante, § 219. 
 
192 Law op Bailments. 
 
 the possession to remain with the debtor, and providing that on the non- 
 payment of the debt the creditor may take possession, does not prevent 
 the instrument from being treated as a chattel mortgage ; and a bill of 
 sale, absolute on its face, if executed as a security for the payment of a 
 debt to become due, is held a mortgage that may be defeated by a pay- 
 ment of the debt when it becomes due.^ The purport and suljstance of 
 the contract determine whether it shall be considered a mortgage or a 
 pledge. The deUvery of a thing, in part execution of a contract, with 
 a stipulation that it may be redeemed on certain terms within a given 
 time, as by the payment of a stipulated sum of money, creates a pledge.^ 
 
 § 248. Both the pledge and the mortgage of goods and choses in 
 action are incident and accessory to the original debt or obligation, for 
 which they are respectively given as a collateral security.^ The assign- 
 ment of the principal debt draws after it the incident ; as, if a note 
 secured by a mortgage be assigned, it carries with it the mortgage of its 
 own force and without any words to that effect ; * for it could not con- 
 tinue to exist as an independent security in the hands of one person, 
 while the note belonged to another.^ Even where it does not in fact 
 accompany the assignment, the assignee, it seems, is entitled to the aid 
 of the mortgage ; so long as that is not extinguished, it may be appealed 
 to in aid of the creditor who holds the original debt." Separated from 
 the principal debt, it has no determinate value, and is not properly 
 assignable.' 
 
 The mortgagee of goods or chattels has no occasion, in order to acquire 
 the legal title, to foreclose the equity of redemption ; his legal title 
 becomes absolute on the failure of the mortgagor to discharge the con- 
 ditions of the mortgage. But there is a right of redemption in equity 
 left, which it is necessary to foreclose ; for this right of redemption is 
 one that cannot be waived beforehand by any agreement between the 
 parties.' It may, however, be foreclosed, without judicial proceedings, 
 by a sale of the property, as in the case of a pledge, upon reasonable 
 notice to the mortgagor." 
 
 1 8 John E. 96; Barrow v. Paxton, 5 .John E. 258. 
 
 2 McLean v. Walker, 10 .John. E. 472 ; Ogilen v. Latlirop, 1 Sweeny, 643. See re- 
 view of authorities in Campbell y. Parker, !) Bosw. 322 ; Eoberts v. Sykes, 30 Barb. 173. 
 
 3 Jackson v. Blodget, 5 Cowen E. 202 ; Green v. Graham, 46 N. H. 169. 
 * Green v. Hart, 1 John R. 580. 
 
 5 Martin v. Mowlin, 2 Burr. 978; Merritt v. Bartholick, 30 K. T. 44. 
 Jackson v. WiUard, 4 John. E. 43. See Lewis v. Varnum, 12 Abbott Pr. 305. 
 ' Jackson v. Blodget, 5 Cowen E. 202; Powell on Mortg. 1115. 
 8 2 Kent's Comm. 583, 3d ed. 
 
 3 Patchin v. Pierce, 12 Wend. E. 61; 2 John. Ch. E. 100; 1 Ves. Sen. 278; Powell 
 on Mortg. 1041. 
 
Pledges or Pawns. 193 
 
 § 249. The pledge is in no respect an estate resting upon condition ; 
 the title to tlie property does not therefore vest or become perfect in 
 the pledgee by any mere lapse of time. The common law treats it as a 
 security, to be held by the pledgee until the debt is paid ; it does not 
 countenance the opinion that the pledge can become forfeited by a fail- 
 ure to pay the debt ; on the contrary, it holds that the right to redeem 
 continues in the pledgor until it is legally foreclosed or barred by the 
 statute of limitations ^ — a statute which operates upon the remedy of 
 both parties, and does not affect the obligation or binding force of the 
 contract.^ 
 
 § 250. The law does not enforce a penalty, stipulated for under the 
 name of liquidated damages ; * and for the same reason it should not 
 enforce a contract by which a debtor delivers property of greater value 
 to secure the payment of his debt, on an agreement that in case he does 
 not pay it on the day it becomes due, the pledge shall become the ab- 
 solute property of his creditor, the pledgee. The effect of such a con- 
 tract is to bind the debtor in terms to pay a penalty, equal to the dif- 
 ference between the pledge and the debt, for his failure to fulfill his 
 agreement ; and tlie law does not enforce the contract.* That is to say, 
 
 1 Cortelyou V. Lansing, 2 Caines' Cas. in Error. 200; 9 Albany Law Journal. 184; 2 
 Kent's Comm. 581, 582; Stearns v. Marsh, 4 Denio, 227; Walter v. Smith, 1 D. & E. 1; 
 5 B. & A. 439. The statute of limitations begins to run against the right of the 
 pledgor to recover the property pledged to secure future advances from the time the 
 pledge Is repudiated by the pledgee. Gilmer v. Morris, 43 Fed. Rep. 456. As to the 
 time within which an action to redeem may be brought, see Eoberts v. Sykes, 30 Barb. 
 173. 
 
 2 Roberts v. Sykes, 30 Barb. 173; Johnson v. Albany & Susquehanna E. E. Co., 54 
 N. T. 416; Quantock V. England, 5 Burr. 2628; Hulbert v. Clark, 128 N". T. 295. 
 
 It is a, general rule recognized in this country and in England that where the 
 secuilty for a debt is a lien on property, personal or real, the lien is not impaired 
 because the remedy at law for the recovery of the debt is barred. Hulbert v. Clark, 
 128 N. T. 295; Pratt v. Huggins, 29 Barb. 277; Thayer v. Mann, 19 Pick. 535; Han- 
 cock v. Franklin Ins. Co., 114 Mass. 155; Shaw v. Silloway, 145 Mass. 503; Joy v. 
 Adams, 26 Me. 330; Belknap v. Gleason, 11 Conn. 160; Ballou v. Taylor, 14 E. I. 277; 
 Spear v. Hartley, 3 Espinasse, 81; Higgins v. Scott, 2 Barn. & Ad. 413; Roots v. 
 Mason City Salt, etc., Co., 27 W. Va. 483; Hudson v. Wilkinson, 61 Texas, 606; Arring- 
 ton V. Rowland, 97 N. C. 127; Hargreaves v. Igo, 46 N. H. 619; Hambleton v. Glenn, 
 85 Va. 901; Paxton v. Rich, 85 Va. 378; Jordan v. Sayre, 24'Fla. 1. See Calkins v. 
 Calkins, 3 Barb. 305 ; S. C. 20 ]Sr. T. 147. And as to the creditor' s right to hold the pledge 
 after his debt is outlawed, see Jones v. Merchants' Bank of Albany, 4 Eobt. 221, 227; 
 S. C. 6 Eobt. 162; Shaw v. Silloway, 145 Mass. 503; Hancock v. Franklin Fire Ins. 
 Co., 114 Mass. 155; Roots v. Mason City Salt, etc., Co., 27 W. Va. 483; Hudson v. 
 Wilkinson, 61 Texas, 606. 
 
 2 Bage V. MiUard, 12 N. T. Leg. Obs. 57; Bagley v. Peddle, 16 N. T. 469; Col well 
 v. Lawrence, 38 N. T. 71. 
 
 * Gray v. Crosby, 18 John. 11. 219. 
 
 1.^ 
 
11)4 Law of Bailments. 
 
 it does not hold a stipulation valid by which a man engages to pay a 
 greater sum as a penalty for his failure to pay a less sum.^ Xo doc- 
 trine of the common law is more firmly settled than this.^ 
 
 § 251. The rights of the parties in the goods pledged are not changed 
 by the death of either of them, but descend to their representatives. 
 This was held in one of the earliest cases reported, in an action of 
 trover.^ The special verdict stated that the plaintiff had pawned a hat- 
 band, set with jewels, unto one Whitlock, a goldsmith, for twenty-five 
 pounds, and no day was set to redeem. The pawnee on his death-bed 
 delivered the pledge to the defendant, with a request to keep it till the 
 money was paid, and then to deliver it to the plaintiff. The pawnee 
 then died, and the plaintiff tendered the debt to his executor, who re- 
 fused to receive the money, and then applied to the defendant, and after 
 a demand and refusal brought his suit. The court gave judgment for 
 the plaintiff ; and of course decided all the points arising out of the 
 verdict, ^^•hich were, that the tender to the executor was well made ; 
 that by the tender and refusal the special property revested in the 
 plaintiff ; that the general property had been constantly in him ; that 
 the death of the pawnee did not destroy the right of redemption ; that 
 the refusal by the defendant, after tender to the executor, was a con- 
 version, and that the defendant had only the bare custody of the pawn. 
 In delivering the ophiion in this case the court observes, extra-judicially, 
 that if the time be limited to redeem, the death of either party, pre- 
 vious to that time, could not prejudice the right ; but that if no time 
 was limited, the pawnor had his whole Ufe, and if he died before he 
 redeemed, the right was gone, and his executors could not redeem. 
 
 But it is now well settled that on the deposit of a pledge, where no 
 day of redemption is limited, the right of redemption descends to the 
 personal representatives of the pawnor ; if the pawnee sell the pledge 
 without notice before application to redeem, he is answerable for the 
 value of the pledge at the time of the application, and it is not neces- 
 sary in such case to make an actual tender of the balance due.* There 
 is, indeed, absolutely no reason why the death of either party to the 
 contract should affect the right of redemption, or prevent it from de- 
 scending entire and unimpaired to the representative of the pawnor.^ 
 
 1 Kemble v. Farren, 6 Bing. 141 ; Orr v. Churcliill, 1 H. Black. 232 ; in point, 
 Lucketts V. Townsend, 3 Texas R. 119. 
 
 2 In tlie early common law practice it was usual to enter a judgment for the penalty, 
 in an action of debt on a bond. 
 
 2 Sir John Ratcliffe v. Davis, S. Jac. I. in K. B. 
 * f 'aines' Cases in Error, 200. 
 
 5 Henry v. Eddy , 34 111. 508. See Booth v. Terrell, 18 Geo. 570; Farrow v. Bragg, 
 30 Ala. 261. 
 
Pledges or Pawns. 195 
 
 The pledgee can acquire no right of property in the goods bailed by pre- 
 scription, and the mere lapse of time confers upon him no new right of 
 any kind. 
 
 § 252. "While it is true that the mere lapse of time works no change 
 in the right of property, it is also true that a failure for a long time to 
 assert either an equitable or legal right does often impair or defeat the 
 remedy ; the right is lost by laches. The action for relief in equity is 
 barred by the statute of limitations, unless it is brought within ten 
 years after it accrues, ^ and it is adjudged that a suit in equity to re- 
 deem against a mortgagee m possession does not necessarily accrue 
 when the money secured by the mortgage becomes due ; that in equity 
 he has a continumg right to relief from the cloud upon his title, not to 
 be denied him so long as he continues liable to an action of foreclosure.^ 
 Aside from this special situation, the action to redeem accrues as soon 
 as it can be brought.'' And the action to redeem a pledge may be 
 brought as soon as the debt it is given to secure becomes due.* Thus 
 interpreted, the statute would operate rather unequally m favor of the 
 party in possession ; the pledgee being allowed to hold his security, 
 after the debt to secure which it is given is barred by the statute.^ 
 § 253. The practical application of the statute works more advan- 
 ' tageously to the pledgor when he brings a different form of action ; such 
 as the action of assumpsit or trover. The contract of pledge is of a 
 continuing nature ; it is a species of trust ; and the contract is not 
 broken, there is no violation of the trust, so long as the pledgee merely 
 holds the security. It is like an ordinary deposit of money in a bank ; 
 the action of assumpsit does not accrue to recover it, until after a de- 
 mand has been made ; " or until after a payment or tender of the debt, 
 
 1 Bell V. Beman, 3 Murpli. E. 273, 277. See Henry v. Tupper, 29 Vt. 358; and see 
 K. T. Code of Civil Procedure, § 388. 
 
 2 Miner v. Beekman, 50 N. T. 337. A proceeding to foreclose lets in the mortgagor 
 to redeem. Calkins v. Isbell, 20 N. Y. 147. Under the present Code an action to 
 redeem real property from a mortgage, with or without an account of rents and profits, 
 may he maintained by the mortgagor or those claiming under him, unless he or they 
 have continuously maintained an adverse possession of the mortgaged premises for 
 twenty years after the breach of the condition of the mortgage, or the non-fulfillment 
 of a covenant therein contained. Code of Civil Pro. § 379. 
 
 3 Hubbell V. Libbey, 5 Lansing, 51, 58; Bennett v. Cook, 45 N. Y. 268; Cleveland 
 Ins. Co. v. Eeed, 24 How. U. S. 284; Waterman v. Brown, 31 Penn. St. 161; and see 
 Bruce v. Tilson, 25 N. Y. 194. See also, Coleman v. Second Ave. E. E. Co., 38 N. Y. 
 201; and Wells v. Yates, 44 N. Y. 525. 
 
 ^ Eoberts v. Sykes, 30 Barb. 173; but see post, §§ 321, 322; Gilmer v. Morris, 35 Fed. 
 Kep. 682. 
 s Jones V. Merchants' Bank, 4 Eob. 221; 6 id. 162. 
 • Downes v. Phoenix Bank, 6 Hill, '297. So where a note has been deposited as 
 
196 Law of Bailments. 
 
 accompanied with a demand for a return of the pledge.^ A refusal to 
 restore the pledge on a tender of the debt within six years after it be- 
 comes due, will support an action of trover brought within six years, 
 thereafter.^ The action lies if brought within six years after the con- 
 version ; and it is clear that the pledgee does not convert the property 
 by continuing to hold it pursuant to the terms of the contract.* There 
 must be some act of appropriation, inconsistent with the bailee's duty 
 to hold the property as a security, like a wrongful sale.' In replevin 
 or ui the action to recover possession of personal property under the 
 Code, permissive possession by the defendant for a long time estab- 
 lishes no defense ; it does not tend to establish a title in the defendant;- 
 his possession must be adverse, or it cannot ripen into a title. The 
 same principles apply as m the action of trover;^ there must be a, 
 demand before suit, where it appears that the defendant acquired pos- 
 session of the goods lawfully.^ 
 
 § 254. On an ordinary loan of a certain number of shares of stock,. 
 one share being just as good as another, it is only necessary to return 
 the same amount of stock in kind. The loan in such a case is Ln sub- 
 stance a sale, to be repaid in kind and quantity, and the title to the 
 stock loaned is immediately transferred to the borrower ; whereas upon 
 a loan of specific articles to be returned in species, the title remains in, 
 the lender, and the borrower is only entitled to the temporary use there- 
 of.' But such articles as are capable of being estimated generally by 
 weight, number or measure, do not, when deposited as a pledge, become 
 the property of the bailee, as they do upon a loan of them ; because the 
 
 collateral for a line of discounts and has been converted into money by the bank, the 
 statute does not begin to run against the right of action for the proceeds of the note 
 before a demand. Humphrey v. Clearfield Bank, 11.3 Pa. St. 417. 
 
 1 See Payne V. Gardner, 20 N. Y. 146; 39 Barb. 042; Sweet v. Irish, 36 Barb. 467; 
 Thorpe v. Coombe, 8 Dow & Eyl. 347. 
 
 2 Hoffman v. Van Nostrand, 42 Barb. 174, 176. It is like an occupation or use with 
 the owner's consent. Rider v. Union India Rubber Co., 2S X. Y. 371). 
 
 8 Roberts v. Berdell, 61 Barb. 37; Luckey v. Gannon, 37 How. Pr. 1.34; 6 Abbott jST. 
 S.209; Harvey v.Epes, 12 Gratt. 153; Wellington v. Wentworth, S Met. .548. See post, 
 §§ 321-323; Cortelyou v. Lansing, 2 Caines' Cases, 200. The action here was one of 
 assumpsit, on a written contract of pledge, the pledge to be delivered upon payment 
 of the principal debt. The statute runs from the time an action for the conversion 
 can be brought. Bucklin v. Ford, 5 Barb. 3y3. See Murray v. Coster, 20 John. R. 576, 
 585. 
 
 ^ Spaulding v. Barnes, 4 Gray, 330; Purdy v. Sistare, 2 Hun, 126; Edwards v. 
 Hooper, 11 M. & W. 363. See Carroll v. Cone, 40 Barb. 220. 
 
 6 Mayor of New York v. Lent, 51 Barb. 19; Gerber v. Monie, 56 Barb. 652. 
 
 ' Sluyter v. Williams, 1 Sweeny, 215. 
 
 ' 3 Ersk. Inst. tit. 1, § 18. 
 
Pledges oh Pawns. 197 
 
 pledge is not for use, but merely held as a security. If the pledgee, 
 therefore, sell the pledge without authority, it is a violation of his trust, 
 and he cannot afterwards replace the article sold with others of a Uke 
 kind and value.^ But where the contract of pledge permits the pledgee 
 to sell or to hypothecate the pledge and afterwards replace it, with a 
 security of the same kind and value, the agreement is to be enforced 
 according to its terms. If, under a pledge of stocks, the pledgee be au- 
 thorized to use them as collaterals in his business, he must regain the 
 possession and restore them on demand as soon as the original debt is 
 paid ; and unless he does so he is liable for their value." 
 
 § 255. As one share of stock in a corporation does not differ from 
 another, the identity of a given number of shares can only be traced 
 through the title.' Hence where stocks are purchased for a customer 
 by a broker, properly in his own name, to be carried on a margin, the 
 agent fulfills his duty by keeping an amount of stock equal to the pur- 
 chase, ready for delivery to his principal on demand.^ Under the con- 
 tract the broker holds the stock as a pledge ; ^ and he is liable for a con- 
 version of the stock, where he sells the same or appropriates it to his 
 own use unlawfully ; and the owner is entitled to recover as damages 
 the market price of the stock at the time of the conversion, or up to the 
 time he might have repurchased the stock, after notice of the sale.* A 
 custom among brokers cannot be appealed to, as an authority to enlarge 
 the power of sale ; it can only be resorted to for the purpose of show- 
 ing what was the understanding or contract between the parties.' And 
 when the contract confers a power of sale in express terms, it must be 
 followed ; a departure from the authority will render the sale unlaw- 
 ful.' But though unlawful, the sale will not discharge a surety liable 
 for the principal debt.' 
 
 1 Nourse v. Prime, 4 Jolin. Ch. 490, and Dykers v. Allen, 7 Hill E. 497; Berlin v. 
 EJdy, 33 Mo. 426. 
 
 2 Lawrence v. Ma.Kwell, 53 N. T. 19; Franklin v. N"eate, 13 M. & W. 481; Ogden v. 
 Lathrop, 6-5 N. T. 158. 
 
 8 Ketchum v. Bank of Commerce, 19 N. T. 499, 511. 
 
 * Horton v. Morgan, 19 N. Y. 170; 6 Duer, 56; Marston v. Gould, 69 N". Y. 220, 226. 
 
 6 Markham v. Jaudon, 41 JiT. Y. 235; Stenton v. Jerome, 54 N. Y. 480. 
 
 6 Baker v. Drake, 53 N". Y. 211. In this case the Court of Appeals reconsiders the 
 rule of damages previously acted upon in like cases in this State, and adopted the 
 rule stated in the text, which latter rule has heen since followed. Gruman v. Smith, 
 81 N". Y. 25; Colt v. Owens, 90 N. Y. 368; Wright v. Bank of Metropolis, 110 ISl". Y. 237. 
 
 ' Horton v. Morgan, 6 Duer, 56, 60; S. C. 19 N. Y. 170; Markham v. Jaudon, 41 
 N. Y. 235; Lawrence v. Maxwell, 53 N. Y. 19. 
 
 8 Stenton v. Jerome, 54 N. Y. 480. 
 
 9 Vose V. Florida R. Co., 50 N. Y. 369. If the avails of the sale he sufficient to pay 
 the deht, the surety is discharged. Strong v. Wooster, 6 Vt. 536. 
 
198 Law of Bailments. 
 
 § 256. The rights of the parties may be further illustrated by the 
 rule prescribing the demand necessary to charge the indorser of a note 
 secured by collaterals. The maker having deposited railroad bonds to 
 secure the payment of the note, has a right to demand their surrender 
 when called upon to pay the note ; and if he offers to pay on their sur- 
 render, being ready and willing to do so, and the collaterals be not ten- 
 dered to him, the demand is ineffectual to charge the indorser.^ A sale 
 of the collaterals, with authority, before the note becomes due, changes 
 the relation of the parties ; the purchaser acquires the pledgor's title 
 discharged of the trust.- Hence, a demand of payment after the sale 
 will be valid, without a transfer of the collaterals. 
 
 § 257. Where the pledgee sells the collaterals prematurely, or without 
 authority, and afterwards brings an action to recover the debt secured, 
 the defendant is entitled to have the value of the pledge wrongfully sold, 
 deducted from tlie amount of the plaintiff's demand; he is not bound to 
 accept the price received on the illegal sale.** And where the pledge 
 wrongfully sold exceeds in value the amount of the debt, the pledgor 
 may maintain an action to recover the value of the things pledged, or 
 their value at the time of the sale ; and in this action the defendant is 
 entitled to set off or recover the amount of the debt due to him.^ A 
 tender of the debt need not be made before the suit is brought.^ The 
 pledgor has a right to recover in an action on the contract of pledge ; and 
 
 1 Ocean National Bank v. Fant, 50 N. T. 474. The action was brought against the 
 indorser of a note in these terms : 
 
 $?J,?^r,2.CA. New YoKK, October 15, ISfiO. 
 
 On demand I promise to pay to Hamilton G. Fant or order s:;,352.61 for value 
 received, with interest at the rate of seven per cent, per annum, having deposited with 
 him as collateral security, with authority to sell the same at the broker's board, or at 
 public or private sale, or otherwise at his option, on the non-performance of this 
 promise and without notice, one land grant bond of the Union Pacific Railroad Com- 
 pany, Eastern Division, of the par value of SI, 000, and foiu- Construction Bonds 
 " Series B " of the said Union Pacific Eailroad Company, convertible into the land 
 grant bonds of the same description as the one first named, and all of the par value of 
 $1,000 each, said bonds being deposited with Ocean National Bank. 
 
 Jos. B. Stewabt. 
 
 A note of this kind remains negotiable, notwithstanding the addition to it of the 
 contract of pledge. Fancourt v. Thorne, 58 Eng. Com. Law, 610. 
 
 "■ Lewis V. Mott, 36 N. Y. 395. 
 
 3 Stearns v. Marsh, 4 Denio, 227. See Capron v. Thompson, 86 N. Y. 418; Gruman 
 V. Smith, SI N. Y. 25; Cass v. Higenbotam, 100 N. Y. 248. 
 
 * Allen V. Dykers, 3 Uill, r)CiS; S. C. 7 Hill, 497; Wilson v. Little, 2 N. Y. 443; New 
 York, etc., E. E. Co. v. Davies, .38 Hun, 477; Stevens v, Hurlbut Bank, 31 Conn. 146; 
 Maryland, etc., Ins. Co. v. Dalrymple, 25 Md. 242; Baltimore, etc., Ins. Co. v. Dal- 
 rymple, 25 Md. 269; Tread well v. Davis, 34 Cala. 601; Fisher v. Fisher, 98 Mass. 303. 
 
 5 The current of authorities is to this effect, and the Special Term decision in Butt'i 
 V. Burnett, 6 Abbott Pr. E. (New Series), 302, was hardly intended to changi> the rule. 
 
Pledges oe Pawns. 199 
 
 the pledgee, though Uable in damages for a breach of the contract, is 
 permitted to set off his demand in the action.^ And the pledgor cannot 
 prevent this by bringing an action of trover ; he cannot by merely chang- 
 ing the form of his action entitle himself to recover damages greater 
 than the amount to which he is in law entitled, according to the true 
 facts of the case and the real nature of the transaction.^ The plaintiff 
 recovers his damages, namely, the value of the property, less his debt.' 
 
 In trover by a lienholder, against ■ the general owner or against any 
 one claiming under him, the plaintiff recovers the value of his interest in 
 the goods ; this rule is well settled.^ Against a stranger he recovers 
 their full value.^ . 
 
 § 258. We have seen that a legal sale, or a sale made with authority, 
 transfers the title to the collaterals." What is the effect of an unauthor- 
 ized sale by the pledgee, on the title to the things pledged ? In a trans- 
 fer of stocks, where the pledgee is entrusted with the title, the purchaser 
 paying value in good faith, will certainly acquire the title, disencum- 
 bered of the trust ; because here the owner invests the pledgee with 
 the title, and arms him with written authority to transfer the property. 
 And the effect is the same where the pledgor entrusts the pledgee with 
 a blank power of attorney, to make the transfer on the books of the cor- 
 poration.' The purchaser naturally relies upon the indicia of title, and 
 is entitled to the property where he buys it in good faith, from a party 
 holding a written power to transfer it.' Considered as a mere agent, 
 the pledgee has authority to sell under certain circumstances ; and the 
 
 1 The defense may be set up under the Code as a counterclaim. Seaman v. Eeeve, 
 15 Barb. 454; Johnson v. Stear, 15 Com. B. (K. S.) 338; Hart v. Miller, 17 Gratt, 187; 
 Lane v. Bailey, 47 Barb. 395. Where the plaintiff pledged a watch to secure the pay- 
 ment of a debt he was owing, and the defendant obtained possession of it in right of 
 the pledgee and sold it prematurely, and received for it other property; it was held 
 the plaintiff could not recover in assumpsit for money had and received. Kidney v. 
 Persons, 41 Tt. 386. 
 
 ^Md. Fire Ins. Co. v. Dalrymple, 25 Md. 242; Baltimore Marine Ins. Co. v. Dal- 
 rymple, 25 Md. 269, 309; Seaman v. Reeve, supra; Brierly v. Randall, 17 Q. B. 937; 
 Chinery v. Viall, 5 Hurl. & Nor. 288. 
 
 3 Parish v. Wheeler, 22 N. T. 494, 511, 515; Manning v. Monaghan, 28 KT. T. 585; 
 Chadwick v. Lamb, 29 Barb. 518; this case overruled on another point, 35 N". T. 277; 
 42 N. T. 324. 
 
 * Spoor V. Holland, 8 Wend. 445; Russell v. Butterfield, 21 Wend. 300, 303. See 
 Allen V. Judson, 71 N. T. 77; Fowler v. Haynes, 91 N. Y. 346. 
 
 6 Alt V. Weidenberg, 6 Bosw. 176. 
 
 « Ante, § 256. 
 
 ' In re Tahiti Cotton Co. ; Ex parte Sargent, 7 English R. 813; Law Rep. 17 Equity 
 Cases, 273. 
 
 8 Crocker v. Crocker, 31 N. Y. 507; Dillaye v. Com. Bank of Whitehall, 51 K. Y. 
 345. 
 
200 Law of Bailments. 
 
 facts justifying the sale are peculiarly within his knowledge ; his position 
 is not unlike that of a factor, under mstructions limiting the price at 
 which he may sell the goods in his hands ; and though he violates his 
 instructions or departs from the understanding under which he holds the 
 property, a sale made by him in the usual course of business is valid.' 
 The form of the transaction shows a clear intent to place the stock 
 under the control and at the disposal of the pledgee ; and it is noticeable 
 that the remedy usually chosen in -these cases assumes that the trans- 
 fer is effectual, though unauthorized in the actual situation of the 
 parties ; " and such is at length the settled, understanding of the law.' 
 
 § 259. At common law, goods pawned or pledged, are not liable to be 
 taken in execution in an action against the pledgor.* The possession of 
 the pledgee could not be disturbed, because the officer could acquire no 
 greater interest in or control over the property than that possessed by 
 the defendant, against whom he held the process of the court. And as 
 Ijublic sales of personal property, not within the view of the bidders at 
 the sale, were declared void by judicial decisions, on the plainest grounds 
 of pubhc policy, it became extremely difficult to sell even the pledgor's 
 interest in the property on execution.'* Where the property was so sit- 
 uated that it could be brought within the view of the bidders, it seems, 
 property in the nature of a pledge might be sold on execution, but not 
 so as to defeat the interest of the pledgee." The interest of the bailor 
 could be sold, but the possession of the bailee having a lien or special 
 property in the goods levied upon could not be disturbed ; there could 
 be, in fact, no taking or actual seizure under the execution.' Hence it 
 frequently happened that the pledging, of many kinds of personal prop- 
 erty, operated to place them beyond the reach of an execution ; and 
 this induced the passage of the statute in this State, authorizing a sale 
 of the pledgor's right or interest in the goods or chattels pledged for 
 
 1 Little V. Barker, 1 Hoff. Ch. R. 487; Fatman v. Lobach, 1 Duer, 354; Leavittv. 
 Fisher, 4 Duer, 1, 20; Kortriglit v. Com. Bank of Buffalo, 22 Wend. 348, 360; N. Y. 
 & N. H. Railroad Co. v. Schuyler, 34 N". Y. :!0, SO; Bridgeport Bank v. N. Y. &. N. 
 H. R. R. Co., 30 Conn. 270. See Ballard v. Brugett, 40 J^". Y. 314. 
 
 2 Wilson V. Little, 2 N. Y. 44:?; Romaine v. Van Allen, 2(1 N. Y'. 309. See Mooro 
 V. McKibben, :33 Barb. 246; Sargent v. Blunt, 16 John. 74; and Scott v. Rogers, 31 
 N. Y. 676. 
 
 8 McNiel V. Tenth Nat. Bank,'4ij X. Y. 325; Moore v. Met. Nat. Bank, 5.5 X. T. 41. 
 
 * Wilkes V. Ferris, 5 John. R. ::i",i;; JIai-sh v. Lawn-nce, 4 Cowen R. 4iU; Badlam . . 
 Tucker, 1 Pick. 389; Pomeroy v. Smith, 17 Pick. S5; Scott v. Sholov, S East, 407; 
 Metcalf V. Scholey, 5 Bos. A Pull. 461. 
 
 6 Linneudoll v. Doe and Terhune, 14 John. R. 222; Sheldon v. Soper, id. 352; Cres- 
 son V. Stout, 17 John. It. 116. 
 
 " Moore v. Hitchcock, 4 Wend. R. 292; Wheeler v. McFarland, 10 Wend. R. 318. 
 
 ' Reynolds v. Shuler, 5 Cowen R. 323 ; 7 Cowen R. 73)5 and 670. 
 
Pledges oe Pawns. 201 
 
 the payment of money, or for the performance of any contractor 
 agreement.' 
 
 "Under this statute the question was seriously litigated whether the 
 sheriff, holding an execution against the pledgor, may by virtue thereof 
 take the property pledged out of the hands of the pledgee into his own 
 possession, for the purpose of selling the interest of the pledgor therem. 
 And it was held, first, that the right and interest of the pledgor cannot 
 be sold on execution unless the goods be present and within the view of 
 those attending the sale;^ that for the purpose of the sale the sheriff 
 may under this statute seize and detain the goods in the same manner 
 as if they were not under pledge, but that he must sell them subject to 
 the lien t)f the pledgee ; and that after the sale he must hold them in 
 the custody of the law to await a redemption by the purchaser. If not 
 redeemed presently, the sheriff must then deliver them again into the 
 custody of the pledgee, to whom the purchaser must look for them. 
 The effect of such a sale under the statute is to vest in the purchaser 
 the precise right and interest of the pledgor. Afterwards the purchaser 
 may of course redeem upon the same terms." 
 
 1 Bailey v. Burton, 8 Wend. K. 339; 2 E. S. p. 464, 3d. ed. This statute is sub- 
 stantially re-enacted in section 1412 of the Code of Civil Procedure. 
 
 ^Blackwell v. Ellsworth, 6 Hill K. 484; Franklin's Case, 5 Eep. 47. See Tift v. 
 Barton, 4 Denio, 171. 
 
 * Stief V. Hart, 1 N. T. 20. Legislation recognizes the rights of both parties, and 
 protects them in different ways. 
 
 Maike. — A creditor may attach personal property held under a mortgage or pledge 
 and sell the same, provided he first pays or tenders the amount due to the pledgee or 
 mortgagee; and he may take first from the proceeds of the sale the amount paid to 
 redeem. E. S. of Maine of 1871, page 623. The same rule holds where an officer sells 
 on execution. Id. 669. The statute applies where there exists a valid lien by a pledge 
 or mortgage. Birch v. Eoberts, 50 Maine E. 395. The levy or attachment may pre- 
 cede the tender or payment, under the statute. Barrows v. Turner, 50 Maine, 127. 
 
 Massachtjsetts. — The debtor's personal property may be attached and held as if 
 it were unincumbered; but the attaching creditor must within ten days pay or tender 
 to the pledgee, mortgagee, or lienholder the sum for which the property is held; i. e., 
 ten days after a demand made by the lienholder, with a written statement of the 
 amount claimed. Unless the creditor pays or tenders the amount due, the attachment 
 is to be dissolved, and the property restored. Gen. Statutes of 1860, pp. 627, 727. The 
 law requires a payment of the lienholder' s demand according to the statement required 
 by the statute ; and the statement must be made within a reasonable time. Simonds 
 V. Parker, 3 Met. 144; Johnson v. Sumner, 1 Met. 172, 294, 325, 515. Ko technical 
 strictness is required by the lienholder in pointing out the parcels of the property 
 covered by the lien. Averill v. Irish, 1 Gray (Mass.), 254. If a mortgagee intends to 
 rely upon the remedy given by the statute, he must not assume to dispose of any part 
 of the goods after the attachment is levied. He is entitled to his debt, and the attach- 
 ing creditor is entitled to the property. Granger v. Kellogg, 3 Gray, 490. 
 
 New Hampshiee. — " Any personal property not exempt from attachment, subject 
 
202 Law of Bailments. 
 
 § 260. It is to be noticed that the effect of a sale on an execution 
 against the pledgor is not in any respect to vary the terms of the con- 
 to any mortgage, pledge, or lien, may be attached as the property of the mortgagor, 
 pledgor, or general pwner;" the officer or creditor paying or tendering the amoimt 
 for which the same is held. The officer or attaching creditor has a right to demand 
 of the pledgee or lienholder an account on oath of the amount of the debt for which 
 the property is held; and unless the same is given within iifteen days, and given hon- 
 estly, the lien is held discharged. General Statutes (1867), pp. 417, 418, §§ 17, 18. A 
 true and fair accoxint satisfies the statute. Barton v. Chellis, 4.j X. H. 1.35. Personal 
 property may be sold on execution against the mortgagor or pledgor in the same man- 
 ner as it may be attached ; and where the officer or creditor pays the debt secured, he 
 is entitled to apply the proceeds of the sale to pay the amount so paid in order to re- 
 lease the property, and the balance on the execution. Gen. Statutes, p. '441. The 
 theory of the statute is that the pledgee or lienholder is entitled to be protected in liis 
 rights; and that he cannot be disturbed in his possession otherwise than is allowed by 
 statute. Briggs v. Walker, 21 N. H. 72. A trustee process does not prevent the pledgee 
 from proceeding to a sale. Chapman v. Gale, 32 X. H. 141 . 
 
 Vermont. — Personal property held by any one as lessee, bailee, pledgee, or by 
 virtue of any contract establishing a reversionary interest or title, may be attached 
 and levied upon as the property of the lessor, bailor, pledgor, or person owning the 
 reversionary interest, subject to the title or interest of the lessee or pledgee ; and the 
 reversionary interest maybe sold. General Statutes (1802), 2d ed. Appendix, 1870, 
 pages 29.3, 2(14. 
 
 Pennsylvania. — The statute allows a sale of goods or chattels held as a pledge, 
 on execution, subject to the rights and interests of the pledgee or pawnee, bailee or 
 lessee. 1 Brightly' s Purdon's Digest, C3.j. Under the statute the practice is to allow, 
 on motion, an execution to sell the pledgor's interest; so allowed where stocks were 
 held as a pledge or security. Freeman v. Simons, 7 Phila. Pi. 307. 
 
 New Tokk. — The terms of the statute allow a sale of the defendant's interest on an 
 execution against the pledgor, and provide that the purchaser shall acijuire that in- 
 terest or right, and shall be entitled to the possession of the goods or chattels on com- 
 plying with the terms and conditions of the pledge. 3 E. S. (U.l, 5th ed. The statute 
 does not authorize anything adverse to the rights or the interest of the pledgee; Bake- 
 well V. Ellsworth, 6 Hill, 484; and it makes no provision for a sale of the interest of 
 a mortgagor of chattels; it leaves that under the rule of the common law. HuU v. 
 Carnley, sheriff, 11 N. Y. 501, 505. The new Civil Code of Procedure of Kew Tork 
 has the following, § 1412 ; " The interest of the judgment debtor in personal property, 
 subject to levy, lawfully pledged, for the payment of money, or the performance of a 
 contract or agreement, may be sold, in the hands of the pledgee, by virtue of an exe- 
 cution against property. The purchaser at the sale acquires all the right and interest 
 of the judgment debtor, and is entitled to the possession of the property, on comply- 
 ing with the terms and conditions upon which the judgment debtor could obtain pos- 
 session thereof. This section does not apply to property of which the judgment 
 debtor is unconditionally entitled to the possession." Judging from the marginal 
 note, this section is not intended to change the effect of the previous statute; this note 
 is in these words : "Interest of bailor in goods pledged may be sold." 
 
 Michigan.— The statute allows a sale on execution of goods or chattels pledged by 
 way of mortgage or otherwise to secure the payment of money or tin' performance of 
 any contract, subject to the lien; and permits the purchaser to pay the amount secured 
 
Pledges oe Pawns. 203 
 
 tract of pledge.^ If the pledge be made to secure tlie payment of a sum 
 of money to fall due at some future time, or to secure the pledgee 
 against a conditional liability that may or may not accrue against him, 
 and which cannot be determined at the time of the sale, it is manifest 
 that the goods pledged must abide the terms of the contract under which 
 the pledgee holds them. The purchaser's right of redemption is the 
 same exactly, and dependent upon the same terms and conditions as 
 that of the pledgor.^ He is entitled to possession of the goods, on com- 
 plying with the terms and conditions of the pledge ; and when these 
 cannot be complied with until some future event has occurred, the 
 pledge must of course be redelivered into the hands of the pledgee. 
 
 § 261. This statute, in common with the statute law of neighboring 
 States, concedes to the officer rights over the pledged goods which the 
 defendant in the execution could not exercise ; it allows him to levy 
 upon and seize the goods at a time when the pledgor has neither the 
 possession, nor any right of control over them — action to be justified 
 only on the ground of public policy. To prevent frauds, the law allows 
 a sale of the pledgor's interest, and also provides that the sale of per- 
 sonal property shall be made in such a manner that the same may be 
 inspected, and may sell to advantage.' By necessary implication, the 
 
 or fulfill the contract at any time before the actual foreclosure of the mortgage or 
 pledge. 2 Compiled Laws, 1871, page 1741. The lienholder's rights and interests are 
 protected equally under proceedings by garnishment. Id. 1819. 
 
 Lidependent of the statute, the interest of a mortgagor of chattels not entitled to 
 hold them for any definite time, cannot be levied on and sold under an execution; he 
 has no legal or vendible interest. Eggleston v. Munday, 4 Mich. (4 Gibbs) 29.5. A 
 payment in any manner of the debt secured by a chattel mortgage, extinguishes the 
 title held by the mortgagee. Place v. Grant, 9 Mich. (5 Cooley) 42. All property 
 pledged as security for a debt reverts to the original owner upon the extinguishment 
 of the debt. Merrifield v. Baker, 9 Allen (Mass.), 29. 
 
 1 Stief V. Hart, 1 N. T. 20. Stief brought replevin against Hart, sheriff, for a quan- 
 tity of goods which defendant had levied upon and taken on execution; on the trial 
 it appeared that the plaintiff held them in pledge, and that the sheriff took the goods 
 from his custody on an execution against the pledgor; and the circuit judge charged 
 the jury that the sheriff had a right so to take the property into his possession in order 
 to sell the pledgor's interest therein. Plaintiff excepted, and moved the Supreme 
 Court for a new trial; the motion was denied, and the Court of Appeals affirmed the 
 judgment of the Supreme Court by a vote of four to four. It will be noticed that under 
 the Code provision the pledged property may be sold " in the hands of the pledgee." 
 Code of Civil Pro. § 1412. 
 
 2 Bakewell v. Ellsworth, 6 Hill K. 484; 2 R. S. 464, § 20, 3d ed. 
 
 » " § 20. When goods or chattels shall be pledged for the payment of money, or the 
 performance of any contract or agreement, the right and interest in such goods of the 
 person making such pledge may be sold on execution against him, and thp purchaser 
 shall acquire all the right and interest of the defendant, and shall be entitled to the 
 
204 Law of Bailments. 
 
 statute allows the officer to take and expose the goods for sale.i It 
 authorizes the sale, and it prescribes the manner in which the officer 
 must sell. It goes no farther ; it does not authorize him to deliyer the 
 goods to the purchaser ; it only declares the purchaser's right to the 
 possession, on complying with the terms and conditions of the pledge. 
 He takes therefore by his purchase the equity of redemption, and noth- 
 ing more ; the same as a purchaser of property covered by a chattel 
 mortgage.- With this difference, on a sale of the mortgagor's interest 
 in goods, where he has a right to the possession of theni for a definite 
 period, the goods may be delivered to the purchaser." 
 
 There are other cases in which the law clothes the officer with rights 
 superior to those of the defendant in the execution. Where one of two 
 partners has the actual possession of the partnership property, the o&- 
 cer with an execution against the other partner is armed with an author- 
 ity to seize the partnership goods, and to use force if necessary to take 
 them into his custody ; and that not merely for the temporary purpose 
 of effecting a sale and then restoring the possession, as in the case of 
 pledged goods ; but the sheriff is authorized to deliver the possession 
 to the purchaser. In order to make a sale of the interest of the defend- 
 ant in the execution, he has the right to levy upon and take the goods 
 into his possession — a greater exercise of power than the law accords to 
 that defendant himself.* 
 
 § 262. It is the duty of the sheriff' to offer the property for sale in 
 such lots and parcels as shall be calculated to bring the highest price ; 
 and in the fulfillment of this duty, it is proper for him to sell several 
 articles and different kinds of property, covered by a chattel mortgage, 
 in one parcel ; for unless one man purchases the whole, he cannot ac- 
 quire the equity of redemption ; there being no legal way of apportion- 
 
 possession of such goods and chattels, on complying with the terras and conditions of 
 the pledge." 3 E. S. 64."), 5th ed. N. Y. The mode of sale is the same as in other 
 cases. Id. 648. 
 
 1 Bakewell v. Ellsworth, 6 Hill, 484; Stief v. Hart, 1 X. T. 20; 'Wmiams v. Amory, 
 14 Mass. 27. 
 
 ^TVliitev. Cole, 24 Wend. 116, 141; Bakewell v. Ellsworth, 6 Hill, 484; Wheeler v. 
 McFarland, 10 Wend. .318. 
 
 8 Hull V. Carnley, 11 N. Y. 501. It is criminal in the mortgagor to sf U the goods 
 with intent to defraud a mortgagee or purchaser. X. Y. La•^^ s of lP-71 , C'h. 77. 
 
 * Phillips V. Cook, 24 Wend. ;389; Melville v. Brown, 15 Mass. 82; AVadadl v. Cook, 
 2 Hill, 47. The judgment being recovered against a partner for his individual debt 
 the sheriff can only sell the defendant's interest. Walsh v. Adams, 3 Denio, 125; 
 Berry v. Kelly, 4 Robt. R. 106, 123. The interest of a special partner in a limited 
 partnership cannot be sold on execution. Harris v. Murray, 28 X. Y. 574. For the 
 release of the partnership property from the le\y under an execution against the indi- 
 vidual property of a partner, see Code of Civil Procedure, §§ 1413-1417. 
 
Pledges or Pawns. 205 
 
 ing the lien of the mortgage relatively upon the different parcels of 
 property.! j^ g^ie in parcels to different parties, therefore, tends to a 
 sacrifice of the property and is injurious to the mortgagor ; it is also in 
 some cases very prejudicial to the mortgagee, dispersing and placing 
 the property beyond his reach. On both accounts it ought to be sold 
 in mass, and subject to the lien.^ 
 
 The same rule must hold good on a sale of personal property subject 
 to the pledgee's lien. If we assume that the things pledged are about 
 equal in value to the debt they are held to secure, it is evident that on 
 a sale of them in different parcels to different persons, they will scarcely 
 be vendible at any price ; because no single purchaser can affosd to re- 
 deem the pledge, and the law does not enable him to redeem it in part. 
 The things pledged must therefore be sold in one parcel, subject to the 
 lien. 
 
 § 263. We may often ascertain the interest of the parties from the 
 rule defining what may be levied on and sold under execution. Personal 
 property pledged by way of a mortage may, after forfeiture, be levied 
 upon by virtue of an execution against the mortgagee, although it 
 remains in the hands of the mortgagor.* A mere chose in action cannot 
 be levied upon and sold on execution.^ Bonds, notes, shares of stock, 
 and property of that nature cannot be seized and taken in execution by 
 the sheriff ; ^ neither can a mere equity in the proceeds of personal prop- 
 erty be sold on execution." But when the mortgagor of a chattel has 
 a right to redeem and a right to the possession for a definite period 
 before the property can become forfeited, he has such an interest as 
 may be sold on execution.' The purchaser in such cases takes the prop- 
 erty subject to the incumbrance ; he purchases the right of the mort- 
 gagor, which is a right to the possession and absolute ownership, sub- 
 ject to the incumbrance ; but if the mortgage at the time of the sale on 
 execution has been forfeited, the mortgagor has no longer the right of 
 
 1 Tift V. Barton, sheriff, 4 Denio, 171. 
 
 2 Manning v. Monaghan, 23 N. T. 539, 544; S. C. 28 N. T. 585. 
 
 8 Ferguson v. Lee, 9 Wend. E. 258. See also, 4 Denio E. 171 ; Mattison v. Baucus, 
 1 K. T. 295. It cannot be talcen under an execution against tlie mortgagor. Leadbetter 
 V. Leadbetter, 125 N. T. 290; Manchester v. Tibbetts, 121 IST. T. 219. 
 
 * Ingalls V. Lord, 1 Cowen E. 240. 
 
 ^ Denton t. Livingston, 9 Jolm. E. 97. Banii notes or bills may be levied on as 
 money; Handy v. Dobbin, 12 John, E. 220, 395; but not as the money of a party for 
 whom an officer has collected it, until paid over. Dubois v. Dubois, 6 Cowen, 494; 
 Betts V. Hoyt, 19 Barb. 412; 14 How. Pr. 477. 
 
 8 Hendricks v. Eobinson, 2 John. Ch. E. 296. 
 
 ' Bailey v. Btirton, 8 Wend. E. 339; Marsh v. Lawrence, 4 Cowen E. 461; Otis v. 
 Wood, 3 Wend. E. 500; Champlin v. Johnson, 39 Barb. 606. 
 
206 Law op Bailments. 
 
 possession ; all the right he then possesses is an equity, which cannot 
 be thus sold. So where it is a condition in a lease of personal property 
 that the lessee shall keep it upon particular premises, and not remove 
 it therefrom, a removal of such property by the lessee operates as a 
 forfeiture of the term and divests his title, so that no uiterest in the- 
 property removed remains in him that can be sold on execution ; because 
 by the forfeiture the title is vested in the lessor with the right of immedi- 
 ate possession.! The established principle is that a person m posses- 
 sion of a chattel, having a right to such possession for a specific time, 
 has an interest which may be sold ; and when that interest expires the 
 o^vner is entitled to his goods and may bring an action for them. The 
 officer sells only the interest of the party in possession ; and even 
 though he assumes to sell the absolute property in the goods, the 
 purchaser will acquire no greater right in them than that possessed by 
 the defendant in the execution.^ 
 
 § 264. Is the pledgee's interest in the things pledged such that it can 
 be levied upon and sold under an execution against him ? His right to 
 them inheres in the debt they are held to secure ; he has no right to 
 derive from them any benefit accruing from the use of them ; separate 
 from the debt, he has no vendible interest in them ; and the debt itself 
 is a chose in action, not capable of sale under an execution. The debt 
 being clue, the pledgee has no interest in the goods pledged for any 
 definite period ; he holds them subject to the owner's call, on payment of 
 the debt.^ Hence a sale of his uiterest on execution will not avail the 
 purchaser unless it carries with it the debt, which is the basis of his 
 interest ; and to give the sale that effect would indirectly authorize the 
 sale of a chose m action under an execution. 
 
 The theory that the pledgee's lien may be severed from the debt, so 
 that the debt may be owned by one man and the lien held by another, 
 is fraught with many difficulties. His property in the goods is special 
 and quahfled; it is not a distinct and independent right of property; it 
 is a lien, a collateral security ; it is not in its nature capable of separa- 
 tion from the original debt. It is no more capable of being separately 
 sold than a mortgage given as collateral security for the payment of a 
 bond ; only the mortgage declares on its face its ancilliary character. 
 
 ! 3 Wend. E. 498. In McCracken v. Luce, not reported, it was held, that a mortgagor 
 of a canal boat, in possession and having the right of possession for a certain time, 
 had an interest which was the subject of sale on execution. 
 
 2 Van Antwerp v. Newman, 2 Cowen r., 540. 
 
 ' In Saul V. Kruger, f) How. Pr. 569, the Superior Court of Xew York hold that the 
 pledgee's interest may be levied upon and sold on execution ; and in Felt v. Hege, 23 
 How. Pr. 3.59, 362, the Supreme Court expresses a contrai-y opinion. 
 
Pledges or Pawns. 207 
 
 The bond is the principal debt ; the mortgage is only an incident to it ; 
 a transfer of the principal debt carries with it the incident ; but the 
 incident is not capable of being transferred separate from the original 
 debt.i 
 
 § 265. On the death of a pledgee, his interest in the pledge passes to 
 his legal representatives, together with the debt to secure which it is 
 held. The debt passes by operation of law, and the possession of the 
 pledge accompanies it ; the bailee's death does not otherwise work any 
 change in the right of property, or in the duties resulting from the con- 
 tract of pledge. Equally on the death of the pledgor, his title and 
 rights pass to his legal representatives ; his personal estate vests in 
 them, including the things pledged, subject to existing liens ; no secu- 
 rity or right of property is gained or lost by the pledgor's death.^ 
 
 § 266. It is not essential that the bailee or lienholder should retain 
 the pledge or collateral security in Ms personal custody ; he does not 
 lose his lien by delivering the property to his agent or servant to hold 
 for him, with notice of his lien. In other words, there is nothing strictly 
 personal in the contract of pledge ; there is nothing in the agreement 
 requiring the pledgee's personal care over the property. He may there- 
 fore store the goods or keep them in the usual manner.' And the con- 
 tract not being of a personal nature, there is nothing to prevent the 
 lienholder from transferring his demand vidth the security which he 
 holds for its payment ; and no rule of law to prevent his transferring 
 both as a pledge or security for a debt of his own provided he does not 
 assume to transfer any more than Ms true interest. The original 
 pledgor is not harmed so long as his right to redeem remains unaffected.* 
 
 § 267. The pledgor has a remedy for any breach of the contract on 
 
 1 Merritt v. Bartholick, 4Y Barb. 253; S. C. 36 N. T. 44. A pledge, like a mortgage, 
 is intended to accompany and secure the principal debt. The pledge gives a lien; so 
 does the mortgage ; by this lien the property is held to pay the debt. An absolute 
 transfer of the bond and mortgage to the mortgagor, the owner of the premises, ex- 
 tinguishes the lien. Angel v. Boner, 38 Barb. 425; Moore v. Hamilton, 48 Barb. 120; 
 S. C. 44 ]Sr. T. 666. 
 
 2 Cortelyou v. Lansing, 2 Caiues' Cas. 200; Webb v. Cowdell, 14 Mees. & Wels. 820; 
 Morgan v. Kavey, 6 Hurl. & Nor. 265; Henry v. Eddy, 34 Bl. 508; Middlesex Bank v. 
 Minot, 4 Met. 325. The rule applies to all contracts except those which involve or 
 depend upon the personal skill of the deceased. Wills v. Murray, Exch. E. 866. 
 
 ' Urquhart v. Mclver, 4 John. E. 103 : holds that a factor may thus preserve his 
 lien. See also, Laussat v. Lippincott, 6 Serg. & Eawle, 386 ; and IngersoU v. Van 
 Bokkelin, 7 Cowen, 6'70, 680. 
 
 * Nash V. Mosher, 19 Wend. 431; Jarvis v. Eogers, 15 Mass. 408; Whitaker v. Sum- 
 ner, 20 Pick. 399, 406; Moore v. Conham, Owen, 123; Eacliffe v. Davis, 1 Buls. 29; 
 McCombie v. Davies, 7 East, 7; Bullard v. Billings, 2 Vt. 309; Duncomb v. New 
 Tork, H. & N. E. E. Co., 84 N. Y. 190, 208. 
 
208 Law of Bailjvients. 
 
 the part of the bailee ; he may reclaim the goods pledged, where they 
 have been transferred in violation of the trust. He cannot maintain an 
 action of trespass against a purchaser to whom the bailee wrongfully 
 sells and delivers them, because here he cannot establish a wrongful 
 taking of the property ; his true remedy is by a suit in equity agamst 
 the pledgee and his assignee to redeem, or by an action of trover for the 
 goods, after a demand and refusal ^— an action in which the defendant 
 should be permitted to limit the plaintiff's recovery to the value of the 
 goods, after deducting the amount of the debt to secure which they 
 were pledged.^ A purchaser in good faith should certainly be allowed 
 this degree of protection ; otherwise the plaintiff will recover more than 
 he is entitled to, at the expense of an honest purchaser.^ 
 
 Vested with express authority to sell or transfer stocks or debentures 
 on a failure to pay the debt or demand for which they are held as a 
 security, the pledgee is liable in damages for a breach of the contract, 
 where he sells before any default or demand of payment is made ; but 
 his unauthorized sale or transfer does not put an end to the contract of 
 pledge ; it does not of itself give the debtor an immediate and uncondi- 
 tional right to reclaim the pledged On the contrary, a bona fide pur- 
 chaser of the pledge acquires an interest in it which cannot be taken 
 from him, without tendering to him the amount due on the pledge.* 
 
 § 268. The owner of securities or of goods and chattels held in pledge 
 may transfer his interest in them subject to the lien. He cannot com- 
 plete the sale of goods thus situated by an actual delivery ; but he can 
 sell and transfer the title, so that the purchaser will be entitled to them 
 on a payment or tender of the amount for which they are held." In 
 order to render a sale of them valid under the statute of frauds by a 
 
 ^ Dudley v. Hawley, 40 Barb. .397, and cases there cited: S. C. Spraights v. Hawley, 
 39 ?r. T. 441 ; Rogers v. Weir, 34 N. T. 4(j:;. See Durant v. Einstein, 35 How. Pr. 223. 
 
 2 Lewis V. Varnum, 12 Abbott Pr. 30.5. 
 
 8 Ante, § 257. 
 
 * Donald v. Suckling, Law Rep. 1 Q. B. 5S5. Pledge of debentures as security for 
 an indorsed note, with power to sell on default, and the pledgee again pledged the 
 same before a default for a larger demand; held in detinue that the repledge did not 
 put an end to the contract of pledge, and that the first pledgor could not recover with- 
 out having paid or tendered the amount of the note. Halliday v. Holgate, Law Rep. 
 3 Ex. 299. A sale of a pledge, scrip of stock, before a demand of the debt, assuming 
 it to be wrongful, does not give the pledgor an immediate right to the possession of 
 the shares; he cannot maintain trover for them without first making a tender of the 
 debt. New York, L. E. & W. R. R. Co. v. Davies, 38 Hun, 477, 480. 
 
 5 Talty v. Freedman's Savings & Trust Co., 3 Otto, 321 ; Lewis v. Mott, 30 N. Y. 395. 
 
 « Bush V. Lyon, 9 Cowen, 52; or where the lien is waived; Bailey v. Adams, 14 
 Wend. 201, 203 ; the goods cannot be taken, nor the value of them recovered in trover 
 until the lien has been discharged. Wood v. Orser, 25 N. Y. 348. 
 
Pledges or Pawns. 209 
 
 delivery, the bailee must consent to hold them subject to the buyer's 
 order ; he must attorn to the purchaser.^ But where the sale is in 
 writing, or valid under the statute without a delivery, the consent of the 
 bailee is not required ; the purchaser may demand the goods as a mat- 
 ter of right on complying with the terms of the pledge.^ The pledgee's 
 position does not enable him to prevent a transfer which leaves his 
 rights unaffected. 
 
 § 269. The rule is that a bailee must retain possession of the goods, 
 in order to preserve his lien upon them.^ Various exceptions have been 
 allowed to this rule ; as where a pledge is delivered back to the owner 
 for a temporary purpose, on a promise to restore it ; * or where it is 
 handed back to the owner for some special purpose, to be returned as 
 soon as the purpose has been fulfilled.* The pledgee of a bond, who 
 hands it back to the pledgor to exchange it for and substitute stock in 
 lieu of it, does not part with his interest.^ And the holder of notes as 
 collateral security does not relinquish his interest in them by giving 
 them to the pledgor to collect or to receive the money upon them.' In 
 these and like cases the pledgor receives back the things pledged in a 
 new character, on a special trust ; and this trust is one which the law 
 will always enforce in suits between the parties, and against third per- 
 sons where the transaction is fair and reasonable.^ The pledgor thus 
 receiving back the pledge holds it as a special bailee, and is bound by 
 the trust, on the same ground as an ordinary bailee.' He is equally 
 liable, where he wrongfully obtains the custody or control of the goods." 
 He is liable in an action of trover or replevin.^^ 
 
 iDixon V. Buck, 42 Barb. TO; Potterv. Washburn, 13 Vt. 538; Barrowsv. Harrison, 
 12 Iowa, 588; Biddle v. Bend, 6 Best & Smith, 225; Feltzplace v. Dutch, 13 Pick. 388. 
 
 2 Anthony v. Wheatons & Whitford, 7 K. I. 490; Carter v. Willard, 19 Pick. 1; 
 Plessant v. Pendleton, 6 Randolph, 478. 
 
 ' Homer v. Crane, 2 Pick. 607; Jarvis v. Rogers, 15 Mass. 389. 
 
 * Roberts v. Hyatt, 2 Taimt. 266; Button v. Arnett, 51 111. 198; Way v. Davidson, 
 12 Gray (Mass.), 465; Cooper v. Ray, 47 111. 53; Cahn v. Ford, 42 La. Ann. 965. 
 
 * Macomber v. Parker, 14 Pick. 497. 
 « Hays y. Riddle, 1 Sandf. 248. 
 
 ' White V. Piatt, 5 Denio, 269; Bank of State of N. T. v. Vanderhorst, 1 Robt. 211, 
 220; 32 N. T. 553. 
 
 8 Cooper V. Ray, 47 111. 53; Jones v. Baldwin, 12 Pick. 316; Reeves v. Capper, 
 5 Bing. N. C. 136. 
 
 9 White V. Piatt, 5 Denio, 269; Way v. Davidson, 12 Gray, 465; Coleman v. Shelton, 
 2McCord (S. C.) Ch. 123; Cooper v. Ray, 47 111. 53; Hutton v. Arnett, 51 111. 98; 
 Thayer v. Dwight, 104 Mass. 254. See ante, § 223. 
 
 M Walcott V. Keith, 2 Foster, 196. 
 
 ^ IngersoU v. Van Bokkelin, 7 Cow en, 670; Rogers v. Arnold, 12 Wend. .30; 7 X. T. 
 555. A surrender of the pledge with intent to abandon the lien puts an end to the 
 
210 Law of Bailments. 
 
 § 270. In an action by the pledgee against tlie pledgor for tlie conver- 
 sion of a bond, the measure of the plaintiff's damages is the value of the 
 bond, with interest from the time of the conversion, unless such amount 
 exceeds the sum due to the pledgee ; in which case that sum is the 
 proper measure of damages — that sum being the exact measure of his 
 interest in the security.^ As against a third person tortiously appro- 
 priating or converting a chose in action, the pledgee recovers the value 
 of the security; prima facie he recovers the face of the bond, bill, or 
 note.^ In this action of trover, the plaintiff need not give the defend- 
 ant notice to produce the note or bond ; bringing the suit is a sufficient 
 notice. But the plaintiff must in his complaint set forth or describe 
 the instrument with reasonable precision.^ \ slight variance between 
 the proof and the complaint will not be regarded as material.* 
 
 § 271. It is the duty of the bailee to keep the things pledged separate 
 from his own ; and if he blends or so confounds them with his own that 
 they cannot be distinguished, he must bear all the inconvenience of the 
 confusion ; if he cannot distinguish and separate his own, he must lose 
 it — a rule which is perfectly just, where the bailee's misconduct admits 
 of no other adjustment.^ The owner may also follow and reclaim his 
 goods from a party receiving them wrongfully and with knowledge.' 
 He may follow and reclaim them when transferred to a party receiving 
 them in bad faith, from a trustee invested with a power of sale ; e. g., 
 when the transfer is made by an executor ; much more when the transfer 
 is made by a pledgee.' But it is equally well settled that an honest 
 purchaser, from a party having the power to sell, will acquire the title.' 
 
 § 272. The bailee is held to a strict compliance with the terms of his 
 contract, and is bound to apply the proceeds derived from the sale of a 
 
 interest of the pledgee. Arnold v. Morgan, 5 Sneed, 703. And where the pledgee per- 
 mits the property to go back into the hands of the owner, and remain here indefinitely, 
 the lien ceases against third persons. Day v. Swift, 48 Maine, 368. And it has been 
 held that a surrender of it for a special purpose puts an end to the lien. Bodenhamer 
 V. Newson, 5 Jones Law Rep. 107 ; and see Beeman v. Lawton, 37 Maine, 543. 
 
 1 Hays V. Riddle, 1 .Sanil. 248. 
 
 2 Ingalls V. Lord, 1 Cowen, 240; Benjamin v. Stremple, 13 111. 466; Little v. Fassett, 
 34 Maine, 545; "White v. Bascom, 28 Vt. 208; Voltz v. Blackmar, 4 Hun, 139; Thayer 
 V. Manley, 73 X. Y. 305. 
 
 "Bissel T. Drake, 19 John. R. 06; Pierson v. Townsend, 2 Hill R. 550. 
 
 « Hays V. Riddle, supra. Under §§ 539, 540, of the Code of Civil Procedure a variance 
 is easily dealt with.' 
 
 5 Hart V. Ten Eyck, 2 John. Ch. 62, 108; 1 Cowen, 743; Roth v. Wells, 29 N. T. 471, 
 486, 491; S. C. 41 Barb. 104. 
 
 8 Colt V. Lasmer, 9 Cowen, 320. 
 
 'Sacia V. Berthould, 17 Barb. 15. 
 
 8 Bogert V. Hertell, 4 Hill, 4U2. 
 
Pledges or Pawns. 211 
 
 pledge in an equitable manner. If, having two demands aguinst a 
 debtor, he receives a third person's note as security for one debt, and a 
 pledge of the debtor's property for both, and afterwards sells the prop- 
 erty for enough to pay both debts, he cannot pay over a part of the 
 avails of the sale to his debtor, and then maintain an action on the 
 surety's note. The law obliges the pledgee to apply the proceeds of the 
 sale to the payment of both debts, thus relieving the surety.^ Until 
 the pledge is rendered available by a sale, the creditor has a right to 
 hold both securities ; but he cannot as we understand the rule surrender 
 the pledge without discharging the surety.'^ This is on the ground that 
 the pledge enures as a protection to the surety ; and the creditor or 
 pledgee becomes bound to use it as a means of obtainmg payment from 
 the debtor.' 
 
 § 273. A party receiving a pledge or mortgage as a security for several 
 debts contracted at the same time, must apply the proceeds derived 
 from a sale of the pledge in equal proportion to the discharge of each 
 debt ; with this qualification, that the interest thereon is to be first 
 paid, and the balance applied. On the other hand, if the debts secured 
 by pledge be contracted at different times, and the pledge is deposited 
 as a security for the first, with a subsequent agreement that it shall be 
 retained as a further security for the others, the proceeds derived from 
 the sale must be applied to the payment of the debts in the order in 
 which they were contracted ; for it is to be presumed that the pawnor 
 pledged for the security of the debts last contracted only what remained 
 of the pledge after payment of the first.* 
 
 § 274. In the appUcation of payments, there are two general rules : 
 1. where a debtor owes his creditor several debts upon distinct causes, 
 and pays him a sum of money, he (the payor) has a right to say to which 
 debt or debts the money shall be appropriated, provided he directs this 
 at the time of the payment ; and 2. the creditor is free to make the 
 apphcation as he deems proper, where the debtor gives no direction on 
 the subject. These rules are confessedly subject to several quaUfica- 
 
 1 Strong V. Wooster, 6 Term. E. 536. 
 
 2 Pitts T. Congdon, 2 Comst. N. T. Eep. 352; Chapman v. Clough, 6 Verm. 123 i 
 Grow V. Garlock, 97 N. T. 87; Third Nat. Bank v. Shields, 55 Hun, 274. 
 
 ^Ramsey v. Lewis, 30 Barb. 403, 414. The surety's right of subrogation implies the 
 same thing. Lewis v. Palmer, 28 N. T. 271 ; and Ellsworth v. Lockwood, 42 N. T. 
 89, 98. 
 
 * Van Blarcom v. Broadway Bank, 9 Bosw. 532; S. C. 37 N. T. 540; Herkimer M. 
 & H. Co. V. Small, 21 Wend, 273; S. C. 2 Hill, 127; Pattison v. Hull, 9 Cowen, 747, 
 and note 6, 776. The theory that a corporation authorized to declare a forfeiture of 
 stock for non-payment of calls thereon, holds the stock as a pledge, has been rejected. 
 Small V. Herkimer Manuf. Co., 2 N. T. 330. 
 
212 Law of Bailments. 
 
 tions.i Without stopping to dwell upon these, it is apparent that the 
 creditor must often have the opportunity to apply a general payment 
 upon the unsecured dehts, leaving those unpaid for which he holds some 
 pledge or security.^ And as this opportunity is given to him on the 
 theory that the dehtor has waived his right to make the application, it 
 is quite clear that he must apply the payment equitably, and at or near 
 the time it is made. Otherwise the law makes the application upon 
 principles of equity depending upon the circumstances ; generally, to 
 the satisfaction of the debts in the order in which they accrued ; and 
 pro rata where moneys are collected on securities embracing them all." 
 § 275. The relation in which the pledgee stands towards the pledgor 
 under his contract is very similar in some respects to that which a fac- 
 tor or commission merchant, who has made advances on the goods in his 
 hands, holds towards his principal ; it is like and imlike. Like a pledgee^ 
 the factor has an interest in and a lien upon the goods for his advances. 
 Unlike the pledgee, the factor ordinarily holds the goods with authority 
 to sell them, in his own name and in the usual manner. A revocation 
 of the factor's authority to sell after advances made leaves him in sub- 
 stantially the situation of a pledgee. As a pledgee, he cannot sell the 
 
 1 Patty V. Milne, IG Wend. 557; 22 Wend. 558. The rule giving a creditor holding 
 several obligations or claims against his debtor the right to apply a payment made to 
 him by the debtor, in the absence of any application m.ade by the latter, is confined to 
 cases of voluntary pajrments. The proceeds of a sale under a judgment of foreclosure 
 of a mortgage, given by a debtor to secure various debts, are paid over to the creditor 
 not as a voluntary payment, but by operation of law, and in the absence of any direc- 
 tions given in the security, their application is made by the court in accordance with 
 equitable principles. If the proceeds are insufficient to satisfy all the debts in full, 
 equity will apply them pro rata, each debt sharing in the fund without regard to priority 
 of date, or to the fact that for some of the debts the creditor holds other security. Brid- 
 enbecker v. Lowell, 32 Barb. 9; Cowperthwaite v. Sheffield, 1 Sandf. 416; S. C. 3 N". T. 
 243; Orleans County Nat. Bank v. Moore, 112 N^. Y. 543; Sanford v. Van Arsdall, 53 
 Hun, 70. 
 
 "- See Clark v. Burdett, 2 Hall, 197; Harding v. Tifft, 75 X. Y. 461. 
 
 'See Orleans County Nat. Bank v. Moore, 112 N. Y. 540; Thompson v. St. Nicholas 
 Nat. Bank, 113 N. Y. 325. It is assumed in some of the cases that the law will apply 
 a general payment to the secured or more burdensome debt, that is for the benefit of 
 the debtor. Patterson v. Hull, 9 Cowen, 747. But that rule does not seem to be 
 established on any firm foundation; the priority of the debt more often governs the 
 application. Baker v. Stackpole, 9 Cowen, 420; Dows v. Morewood, 10 Barb, is.".; 
 Allen V. Culver, 3 Denio, 284; Truscott v. King, N. Y. 147; and the rules of equity 
 as frequently; Stone v. Seymour & Bouck, 15 Wend. 19-44; Thomas v. Kelsey, 30 
 Barb. 268; and the contract or security itself as often; that is, where moneys are 
 collected on securities covering all the debts; Bridenbecker v. Lowell, 32 Barb. 9-24; 
 Cowperthwaite v. Sheffield, 1 Sandf. 416; 3 N. Y. 243. The application is sometimes, 
 made on the debtor's implied direction. Berrian v. Mayor, etc., of N. Y., 4 Eobt. 538,^ 
 551. 
 
Pledges ok Pawns. 213 
 
 property until he has first demanded payment of the debt secured, 
 and thus given the owner a reasonable opportunity to redeem the 
 property.^ 
 
 § 276. The pledgee may, but he is not obliged to, resort to the prop- 
 erty for the payment of his demand ; he is not bound to exhaust his 
 security.^ On the other hand, the factor is bound to exhaust the fund 
 in his hands, before he can call upon his principal for reimbursement ; 
 on the gromid that his advances are understood to be made in anticipa- 
 tion of the moneys to be realized from a sale of the goods. ° And left 
 without instructions, he may sell the goods for that purpose ; after that 
 he may call upon his principal for any balance that may remain due to 
 him.* 
 
 § 277. A pledgee has in some particulars more freedom in dealing 
 with the goods in his hands than the factor is allowed under the com- 
 mon law ; the pledgee may transfer or assign the pledge with the debt 
 secured, and invest his assignee with all his rights in the security, so 
 that practically the assignee may hold the pledge on the same terms 
 and conditions ; ^ on the other hand the factor cannot at common law 
 pledge the goods of his principal for his own benefit to the extent of 
 his lien, or for the benefit of his principal ; as an agent he has no 
 authority to pledge the property ; and if he assumes to do so, without 
 express permission, he is guilty of a violation of his trust ; and his act, 
 being tortious and void, passes no title and can create no lien ; on the 
 contrary, it gives to the owner an immediate right of action for the 
 goods against the pledgee, who is not allowed either to bar a recovery 
 or reduce its amount by any inquiry into the state of the accounts 
 between the principal and his xmfaithful agent. By wrongfully pledg- 
 ing the goods and parting with the possession, the factor loses even 
 his lien.° 
 
 1 Allen V. Dykers, 3 Hill. 593; 7 Hill, <t98; "Wilson v. Little, 2 N. T. 443; 4 Kent's 
 Comm. 139, 140; Tucker v. Wilson, 1 P. Wms. 261; Lewis v. Varnum, 12 Abb. Pr. 
 305; Garlick v. James, 12 Johns. 148; Farwell v. Importers', etc., Nat. Bank, 90 N". T. 
 483, 490. 
 
 2 Elder v. Rouse, 15 Wend. 218; Kimball v. Huntington, 10 Wend. 675; Sterling v. 
 The M. & S. Trading Co., 1 Serg. & E. 179; Field v. Leavitt, 37 N. Y. Supr. Ct. 215; 
 Moody V. Andrews, 39 N. T. Slipr. Ct. 302; Morris v. Tales, 43 Hun, 393; Gilbert v. 
 Marsh, 12 Hun, 519; James v. Hamilton, 2 Hun, 630; S. C. 63 N. T. 616; People v. 
 Remington, 121 K. T. 328; Lewis v. United States, 92 U. S. 618; Corn Exchange Ins. 
 Co. V. Babcock, 57 Barb. 231; Queens Co. Bank v. Leavitt, 32 St. Rep. 339. 
 
 3 Gihon V. Stanton, 9 N. Y. 476. 
 
 *Blackmar v. Thomas, 28 N. Y. 67; Blandford v. Wing Flour Mill Co., 24 111. App. 
 596; Hidden v. Waldo, 55 N. Y. 294. 
 6 Ante, §§ 257, 258, 266, 267. 
 8 Walther v. Wetmore, 1 E. D. Smith, 7; Bonito v. Mosquera, 2 Bosw. 401, 427; 
 
214 IvAAV OF Bailments. 
 
 § 278. A factor receiving goods to sell on commission is impliedly 
 authorized to sell them in the usual manner and on the usual terms and 
 conditions ; with a warranty or upon a credit, ^vhere that is the custom- 
 ary mode of selUng the property in question. ^ When his instructions 
 are express, he must follow them ; ^ when given in general terms, he has 
 a right, and it is his duty, to interpret them with reference to the usage 
 of the business. His occupation as a factor implies certaui rights and 
 duties ; among others the right to sell in his own name, without disclos- 
 ing that of his principal ; = and the duty to safely keep and seU the 
 goods to the best advantage.* Intrusted with a discretion, he must act 
 in good faith and with reasonable prudence, for the benefit of his prin- 
 cipal.^ 
 
 Phillips V. Huth, 6 Mees. & "W. 595; Kennedy v. Strong, 14 John. 128; Buckley \: 
 Packard, 20 John. 422; JIcFarland v. Wheeler, 26 Wend. 467; ante, § 214; McCreary 
 V. Gaines, 55 Texas, 485. 
 
 1 Smith V. Tracy, 36 N. T. 79; Andrews v. Kneeland, 6 Cowen, 354; Hilton v. Yau- 
 derbilt, 82 X. T. 591 ; Pinkham v. Crocker, 77 Me. 563. 
 
 2 Edwards on Factors and Brokers, §§ 16-32; Hilton v. Yanderbilt, 82 N. T. -591; 
 Marfield v. Goodhue, 3 IST. T. 62 ; Commercial Nat. Bank v. Heilbronner, 108 N". Y. 
 439, 444. 
 
 ^ Higgins V. Moore, 34 N. T. 417. 
 
 *Milliken v. Dehon, 27 N". Y. 364; Linley v. Carpenter, 4 Kobt. 200; Adams v. 
 Capron, 21 Md. 186. 
 
 ^Milbank v. Dennistoun, 21 N. Y. 386; 52 N. Y. 90, 605. The effect of a commis- 
 sion del credere is, in several particulars, to place the factor in new relation as to his 
 principal. It is true, he is the debtor, but the principal still retains the right, at any 
 time before payment, to resort to the purchaser as collateral security. It is a rule for 
 the protection of the principal. The factor as guarantor under a del credere commis- 
 sion has no exclusive right to collect the proceeds of the sales. Merrill v. Thomas, 
 7 Daly, 393; Sherwood v. Stone, 14 N. Y. 267, 270; Moore v. Hillabrand, 37 Hmi, 491. 
 See Baker v. New York Nat. Exch. Bank, 100 N. Y. 31. But a factor who has 
 guaranteed the sales is entitled to collect the proceeds in his own name, a right of 
 ■which the principal cannot deprive him except by relieving him from his guaranty. 
 Commercial Nat. Bank v. Heilbronner, 108 N. Y. 439, 443. A general factor may wait 
 to receive instructions as to the mode of remitting the net proceeds, and is not liable 
 to an action until a default, on his part, in remitting or paying the proceeds accord- 
 ing to the orders of his principal. Ferris v. Parris, 10 John. E. 285. The only differ- 
 ence between a factor, acting under a del credere commission, or without one, is as 
 to the sales made. In the former case lie is absolutely liable, and may correctly be 
 said to become the debtor of his principal ; but it is not strictly correct to say that he 
 is placed in the same situation as if he had become the purchaser himself; for, as we 
 have seen, the principal, notwithstanding this liability, may exercise a control not 
 allowable between creditor and debtor. When the principal appears, the right of the 
 factor to receive payment ceases. The effect of the .commission is not to extinguish 
 the relation between principal and factor, but applies solely to a guaranty that the 
 purchaser shall pay. The liability is not contingent, so as to require legal measures 
 to be exhausted against the purchaser before the factor is bound, but an engagement 
 
Pledges or Pawns. 215 
 
 § 279. Sale or Foreclosure. On a failure by the pledgor to pay the 
 debt or discharge the obligation for which the pledge is given, the 
 pledgee may file a bill in equity for a foreclosure and proceed to a ju- 
 dicial sale ; or he may sell without judicial process, upon giving reason- 
 able notice to the pledgor to redeem, and of the intended sale. Non- 
 payment of the debt does not work a forfeiture, either under the civil 
 or common law; it simply clothes the pledgee with authority to sell the 
 pledge and reimburse himself for his debt, interest, and expenses ; the 
 residue of the proceeds belongs to the pledgor. The old rule, exist- 
 ing in the time of Glanville, required a judicial sentence to warrant a 
 sale, unless there was a special agreement to the contrary. But it 
 is now settled that the pledgee may sell on a reasonable notice to the 
 pledgor.^ 
 
 A lien on personal property does not of itself confer a right to sell ; 
 and the law seems to place the pledgee's right to sell the pledge and 
 apply the proceeds to the payment of his demand, on the ground of an 
 implied authority arising from the nature of the transaction : ^ the 
 debtor intends that the security shall be made available, and the pro- 
 ceeds applied if necessary to the satisfaction of the debt ; and the law 
 sanctions a sale by the pledgee, under certain restrictions, as a proper 
 and safe mode of applying the pledge in payment of the debt. It 
 affirms his right to sell, like a mortgagee of chattels.' 
 
 § 280. Under the Code of Louisiana, the pawnee cannot, on a failure 
 of payment, dispose of the pledge ; but must apply to a judge to order 
 that the thing shall remain to him in payment for as much as it shall 
 be valued at by two appraisers, or that it shall be sold at public auction, 
 at the choice of the debtor ; and every agreement authorizing the cred- 
 itor to appropriate the pledge to himself, or to dispose of it without 
 such formalities, is void.* In the other States, where the common law 
 
 to pay on the day the purchase money becomes due. Although the factor is abso- 
 lutely liable, he is not bound to pay until the money becomes due from the piirchaser. 
 Subject to the limitations above mentioned, the factor, under a commission, becomes 
 a debtor to his principal. Baker v. Langhorne, 6 Taunt. 519; Leverich v. Meigs, 1 
 Cowen E. 645; McKenzie v. Scott, 6 Brown Par. Cas. 280; 7 Taunt. 164; Boston 
 Carpet Co. v. Journeay, 36 N. T. 384. 
 
 1 Cortelyou v. Lansing, 2 Caines' Cas. 200; Stearns v. Marsh, 4 Denio, 227. 
 
 2 Pigot V. Cubley, 15 C. B. (IST. S.) 701. 
 
 8 Pothonier v. Dawson, Holt N. P. 385; Cortelyou v. Lansing, 2 Caines' Cas. 200; 
 Doane v. Eussell, 3 Gray (Mass.), 382; Garlic v. James, 12 John. E. 146; Eohinson 
 V. Hanley, 11 Iowa, 410; Patchin v. Pierce, 12 Wend. 61; Hart v. Ten Eyck, 2 John. 
 Ch. 62, 100; Kelson v. Edwards, 40 Barb. 279. 
 
 *Code, Art. 3132; Floumoy v. Milling, 15 La. Ann. E. 473. The Code of Louis- 
 iana is quite specific in regard to the making of the contract as well as the mode of 
 sale. Arts. 3123 to 3129. 
 
216 Law of Bailments. 
 
 prevails, the pawnee is allowed to sell at his discretion, being held re- 
 sponsible, at his peril, to deal fairly and justly with the pledge. The 
 difference between the civil and the common law in this respect, is 
 modal ; it hardly touches the essential rights of the parties under the 
 contract. The civil law assumes the direction of the proceeding, work- 
 ing a foreclosure ; and the common law gives a remedy for any violation 
 of its principles, in a lilie preceding. 
 
 § 281. Under the ordinary contract of pledge, the pledgee's right to 
 sell at common law does not accrue until after a default is made in the 
 payment of the debt secured, or in fulfilling the engagement.^ It is a 
 breach of trust, a tortious act, to sell the pledge before the debt becomes 
 due, or before the principal obligation matures.^ His right to sell arises, 
 like that of the mortgagee of chattels, on a default ; " until that occurs, 
 he holds the pledge merely as a security. The right to foreclose or to 
 sell the pledge is a remedy given to the creditor to enforce the principal 
 obligation ; the pledgee cannot therefore resort to either of these reme- 
 dies, untU his right accrues to enforce that principal obligation. 
 
 § 2S-2. Before the pledgee can proceed to a sale, under the usual con- 
 tract of pledge, he must demand payment of the debt ; he must call 
 upon the pledgor to redeem, and must give him an opportunity to do 
 so.^ The right to sell is conditioned upon a prior demand ; it is to be 
 exercised in a reasonable manner, after giving the pledgor a reasonable 
 time to redeem the pledge. Hence a waiver of notice of sale, embodied 
 in the contract or pledge, does not dispense with the necessity of such 
 prior demand ; and the rule is the same where the principal debt is 
 already due.^ The law requires a demand, so that the pledgor may re- 
 deem, and thus save himself from a sacrifice of his property on a forced 
 sale ; and this principle is carried into the construction of special con- 
 tracts of pledge.^ 
 
 § 283. An agreement by the debtor that the pledge shall become the 
 
 1 Dykers v. Allen, 7 Hill, 497. 
 
 2 Johnson v. Stear, 15 C. B. (X. S.) 3:".i). 
 
 8 Spaulding v. Barnes, 4 Gray (Mass.), 330. 
 
 ^Wilson V. Little, 2 N. Y. 443, 44s ; Genet v. Howland, 45 Barb. 560; Hanks v. 
 Drake, 49 Barb. 180; Markham v. Jaudon, 49 Barb. 402; S. C. 41 X. T. 23o; Stevens 
 V. Hurlbut Bank, 31 Conn. 146; Davis v. Funk, 39 Pa. St. 243; Garlicky. James, 12 
 Johns. 148; Farwell v. Importers', etc., Xat. Bank, 90 X. Y. 483, 490; Gal. Civil Code, 
 §3001; Stenton v. Jerome, 54 X. Y. 480; Bryan v. Baldwin, 52 X. T. 232; Jaro- 
 slauski v. Saunderson, 1 Daly, 232. 
 
 6 Wilson V. Little, supra; Cal. Civil. Code, § 3004. 
 
 8 Milliken v. Delion, 27 X". Y. 304; Merwin \. Hamilton, 6 Duer, 244; Taylor v. 
 Ketchum, 5 Eobt. (il)7; Lawrence v. Maxwell, 53 X. Y. 19; Stenton v. .Jerome, 54 
 N. T. 480; Ogden v. Lathrop, 35 X. Y. Supr. Ct. 73; S. C. reversed, 05 X. Y. 158 
 
Pledges oe Pawns. 217 
 
 property of the creditor on a failure to pay the debt secured is illegal ; 
 the creditor is not allowed to stipulate for a forfeiture.^ Subject to this 
 rule of law, the parties are free to regulate the sale of the property in 
 the contract of pledge ; and as a matter of fact, they do often agree 
 upon the place and mode of the sale, and upon the notice to be given. 
 Without any agreement, the law requires that the sale shall be open 
 and public; and it is competent for the parties to agree upon a sale at 
 the Brokers' Board, not open to the general public ; or upon a private 
 sale ; " the pledgee being bound to sell the property fairly, in the exer- 
 cise of his rights under the contract. In the absence of any agreement, 
 the sale must be made at public auction, at a place open to the general 
 public, under circumstances fitted to insure a sale for an adequate price.' 
 § 284. On short loans the custom now is to take from the borrower 
 his note for the amount, accompanied with stocks or bonds as a col- 
 lateral security, with authority to sell the same at the Brokers' Board, 
 or Stock Exchange, or at public or private sale, on the non-payment of 
 the note, and without notice.^ The authority is inserted in the note, in 
 the form of a recital, and does not take from it its negotiable character.* 
 
 1 "Williamson v. Culpepper, 16 Ala. 211 ; Lucketts v. Townsend, 3 Texas, 119. The 
 rule is everywhere assumed. Walker v. Staples, 5 Allen (Mass.), 34; Kimball v. Hil- 
 <lreth, 8 Allen, 167; ante, § 250; Jessup v. City Bank, 14 Wis. 331. 
 
 2 Brass v. Worth, 40 Barb. 648, 653; Costelo v. City Bank, 1 N. T. Leg. Obs. 25; 
 Eankin v. McCullough, 12 Barb. 103; Dykers v. Allen, 7 Hill, 497, 499; Baker v. 
 Drake, 66 N. T. 518; Williams v. United States Trust Co., 133 IST. T. 660; Carson v. 
 Iowa City Gaslight Co., 45 Northwest. Rep'r (Iowa), 1068; Milliken v. Dehon, 27 
 TSr. T. 364. See Maryland, etc., Ins. Co. v. Dalrymple, 25 Md. 242; Baltimore, etc., Ins. 
 Co. V. Dalrymple, 25 Md. 269, 424; Wllloughby v. Comstock, 3 Hill, 389; Brown v. 
 Ward, 3 Duer, 660; Bryson v. Eayner, 25 Md. 424. 
 
 8 Strong V. Kat. Mechanics' Banking Ass'n, 45 N. T. 718, 720; Dykers v. Allen, 7 
 HiU, 497; Wheeler v. Newbould, 16 N. Y. 392; Morgan v. Dod, 3 Col. 551. In Brown 
 T. Ward the court hold that a sale of stocks by the pledgee must be made at the 
 Merchants' Exchange, at public auction, unless some other mode of sale is agreed 
 upon by the parties. 3 Duer, 660. It is for the owner to show that the sale was not 
 made at the proper place; so held where the pledge, gold, was sold at the Gold Board 
 in New York. Schepeler v. Eisner, 3 Daly, 11. See Willoughby v. Comstock, 3 Hill, 
 389. 
 
 * Here is a form of the note, with the authority: 
 $500. Albaitt, January 30, 1875. 
 
 Ninety days after date I promise to pay Richard Roe or order, at the First National 
 Bank of Albany, five hundred dollars for value received, with interest, having deposited 
 with him as collateral security, with authority to sell the same, at the Brokers' Board 
 in the City of New York, at public or private sale, or otherwise, at his option, on the 
 non-performance of this promise, and without notice, 5 shares N. Y. Central stock. 
 
 John Doic. 
 
 See also, the form of the note with the authority to sell in Williams v. United States 
 Trust Co., 133 N. Y. 660, 661. 
 '"■ Fancourt v. Thorn, 9 Q. B. 312; 10 Jur. 639; 16 L. J. Q. B. 344. 
 
218 Law of BAlI.ME^''J's. 
 
 Under an agreement so ample, the pledgee has the right to sell the 
 pledge as soon as the note is due ; the contract, being fairly made and 
 executed, prescribes the rights and liabilities of the parties.^ It 
 supersedes the necessity of a demand, before the sale ; and it waives the 
 notice required by law. In legal effect, it enables the pledgee to convert 
 the pledge into money by an immediate sale ; and adds new features to 
 the contract, by taking away from it some of the safeguards by which 
 the law protects the interests of the pledgor. But the same contract 
 does not authorize an immediate sale, without demand, where the debt 
 secured is payable on demand, or where the time of payment is in- 
 definite ; because here it cannot be supposed that the pledgor intended 
 to authorize a sale before being called upon to fulfill his contract.^ 
 
 Under a pledge of stocks, by which the owner in express terms sells 
 and assigns them for value received, with the scrip, accompanied by a 
 power of attorney to complete the transfer, the pledgee is practically 
 invested with the title ; he is enabled to sell or pledge them as owner, 
 in excess of his actual authority, so that a party making advances on 
 the stocks, on the faith of the apparent title, may hold them. Though 
 the sale or second pledge is made by the pledgee in bad faith, it is 
 valid in favor of the party taking the stocks in good faith, for value ; 
 on the same principle as like pledges are held valid under the factors' 
 act.^ 
 
 § 285. There does not appear to be any reason to prevent a demand 
 of payment from being made at the time ■ the notice of sale is given.* 
 As steps prerequisite to a sale, they are not to be confounded ; the 
 object of the demand is to prevent a sale, by rendering it unnecessary ; 
 and the object of a notice is to enable the debtor to take proper meas- 
 
 1 Williams v. United States Trust Co., 1.3.3 >f. T. CCO. An agreement fixing the 
 time the pledgee was to hold the pledge was upheld in Rankin v. McCullough, 12 
 Barb. 103. In Genet v. Howland, 45 Barb. 500, the court held the agreement valid. 
 The same doctrine is held in Milliken n . Dehon, where the contract was special; 10 
 Bosw. 325 S. C. 27 N. Y. 3(14; and in Taylor v. Ketchum, 35 How. Pr. r>. 2^9; Stevens 
 V. Ball, 6 Mass. E. .339; Mowry v. Wood, 12 Wis. 413; Vose v. Florida E. C, 50 K T. 
 309. 
 
 - Wilson y. Little, 1 Sandf. 351; S. C. 2 X. Y. 443; Garlick v. .James, 12 ,Tohn. K. 
 146, 149; Odgen v. Lathrop, 3 Jones & S. 73; S. C 1 Swerny, 643; S. ('. 05 X. T. 158. 
 In this case effect is given to a clause in the pledge permitting the pledgee to " use, 
 transfer or hypothecate the stock." 
 
 3 McNeil v. The Tenth Kational Bank, 40 X. Y. 325 ; Jarvis v. Rogers, 13 Mass. 
 105; 15 Mass. .389; Patman v. Loback, 1 Duer, 354. See Ex parte Swan, 7 C. B. (N. 
 S.) 400; Swan v. The North British A. Co., 7 Hurl. * Nor. 603; 2 Hurl. & Coltman, 
 175. .See also, Merchants' Bank v. Livingston, 74 X. Y. 223, 220. 
 
 ■* Notice of an intention to foreclose was held equivalent to a demand, in Howe v. 
 Bemis, 2 Gray, 203. 
 
Pledges or Fawxs. 219 
 
 ures to insure a fair sale ; and both must be reasonable in point of time.* 
 The duty of the pledgee to call upon the pledgor to redeem, and to give 
 him notice of the sale, is the same whether the pledge is delivered at the 
 time the debt is contracted, or afterwards ; it is the same whether the 
 pledge is made before or after the debt becomes due.^ 
 
 § 286. Personal notice of the sale must be given to the pledgor or 
 left at his residence ; and il he cannot be found so as to be served with 
 notice, judicial proceedings must be had, in order to authorize a sale.* 
 As to what shall be considered a reasonable notice of the sale of goods 
 mortgaged or pledged as a collateral security, there does not seem to be 
 any settled rule. The cases agree that a sale may be had of the goods 
 on a reasonable previous notice of the time and place of sale ; and that 
 the object of this notice is to give the pledgor an opportunity to redeem, 
 or to attend the sale for the purpose of seeing that the property is not 
 sacrificed.^ Judging from the object, it is evident that what would be 
 a reasonable notice in one case would be entirely inadequate in another. 
 Stocks and bonds may be sold at the Brokers' Board, or Stock Exchange, 
 the market for that species of property, with entire safety on a short 
 notice.^ When the pledge consists of goods and chattels personal, per- 
 
 1 Genet v. Howland, 45 Barb. 560. Here the pledge was given for a loan payable 
 on demand, with full authority to sell; held that a reasonable demand was necessary, 
 though no notice was necessary under the agreement. See, also Parker v. Brancker, 
 22 Pick. 40; Washburn v. Pond, 2 Allen (Mass.), 474. 
 
 ^ Stearns v. Marsh, 4 Denio, 227. For old rule, see Bac. Abr. Bailment, B. 
 
 8 Garlick V. James, 12 John. E. 146; 2 Story's Eq. § 1008; Stearns v. Marsh, 4 Denio, 
 227; Strong V. National B. Asso., 45 N. Y. 718; Bryan v. Baldwin, 7 Lansing, 17^. 
 
 * The following cases hold that the notice of the sale of a pledge must specify the 
 time and place: Lewis v. G-raham, 4 Abbott's Pr. R. 106; Costelo v. City Bank, 1 
 N. Y. Leg. Obs. 25; Wheeler v. Newbold, 5 Duer, 29; 16 N. Y. 392; Taylor v. Ketch- 
 um, 5 Eobt. 507; Brass v. Worth, 40 Barb. 648; Strong v. National M. B. Asso., 45 
 N. Y. "718, 720; Markham v. Jaudon, 49 Barb. 462; S. C. 41 N. Y. 235; Brown v. 
 Ward, 3 Duer, 660. The notice may be waived by agreement. See Milliken v. Dehon, 
 10 Bosw. 325; S. C. 27 N. Y. 364; Stevens v. Hurlbut Bank, 31 Conn. 146; Hyatt v. 
 Argenti, 3 Cal. 151; Davis v. Funk, 39 Pa. St. 24.3; Conynham's Appeal, 57 Pa. St. 
 4*74; MAEvm, J., calls the rule in question; 27 N. Y. 364; and these cases hold that an 
 express power in a chattel mortgage to sell at private sale may be executed without 
 notice. Chamberlain v. Martin, 43 Barb. 607; Haskins v. Patterson, 1 Edm. K. 120; 
 Huggars v. Fryer, 1 Lansing, 276; the agreement controls ; Vose v. Florida E. Co., 
 50 N. Y. 369. 
 
 5 A sale of stocks at the Brokers' Board on two days' notice, not objected to, was 
 held valid in Willoughby v. Comstock, 3 Hill, 389; and valid, though objected to, in 
 Biyan v. Baldwin, 7 Lansing, 174; in another case a notice given on the 13th of 
 November for a sale on the 20th was considered reasonable; Md. Fire Ins. Co. v. 
 Dalrymple, 25 Md. 242 ; in another case it appears that the parties agreed on a sale of 
 bonds at the Brokers' Board, on a notice of five days, doubtless deeming that a rea^ 
 sonable notice; Vose v. Florida Eailroad 0«., 50 N. Y. 369, 373. 
 
220 Law of Bail:mexts. 
 
 haps the safest rule is to give the same notice which is required to be 
 given of a sale of personal property, seized on execution. The presump- 
 tion is, that what the law holds a reasonable notice in respect to similar 
 goods, would be held suificient to protect the mortgagee or pledgee of 
 goods. As courts of equity watcli such proceedings with vigilance, it 
 is necessary that the manner of sale should be perfectly open and public, 
 and free from all unfairness. There must be six days' notice given of 
 the sale of goods and chattels on execution, describing briefly the prop- 
 erty, and specifying the time and place of sale.^ At the time and place 
 specified, the goods to be sold must be present, subject to the inspection 
 and examination of the bidders. Unless the property is so present, the 
 sale will be invalid.^ The officer must also point out the property 
 specifically, and sell it in parcels.'* His proper course is to sell only so 
 much of the property, which can be conveniently and reasonably sold 
 separately, as will satisfy the execution.* 
 
 §. 2S7. Legislation on the subject may aid us to determine what is 
 a reasonable notice ; it certainly throws some light on the question. 
 It affirms the necessity of a notice, and, so far as ^^'e have any examples, 
 it indicates an opinion in favor of a notice sufficiently long to furnish 
 every opportunity to redeem the property, or at all events to protect it 
 from bemg sacrificed on the sale.^ 
 
 1 -3 E. S. of New York, 64.5, 648, 5tli ed. ; 2 Kent's Comm. 583; Code of Civil Pro. 
 § 142!). It need not describe tlie e.xecution nor give tlie name of tlie judgment debtor. 
 Chapman v. Morrill, 19 Hun, 318. 
 
 2 Code of Civil Pro. § 1428; Cresson v. Stout, 17 Jobn. R. 116; unless tlie property 
 is of a peculiar nature— stereotype plates; Bruce v. Westervelt, 2 E. D. Smith, 440. 
 
 3 Sheldon v. Soper, 14 John. It. 352; Breese v. Bange, 2 E. D. Smith, 474; Code of 
 Civil Pro. § 1428. 
 
 * Hewson v. Dygert, 8 John. R. 333, 335. The nature of the property and its situation 
 will generally indicate in what parcels it should be offered for sale; and the defend- 
 ant's consent may justify a sale in large parcels. Stephens v. Baird, 9 Cow. 274. 
 Plaintiff's consent will not be inferred from the silence of his agent sent to bid on the 
 sale. Wyman v. Hart, 12 How. Pr. 122. It is proper to sell in mass property covered 
 by a chattel mortgage. 4 Denio, 171. 
 
 ^ FOKECLOSUEE OP PLEDGES. 
 
 The statutes of this State prescribe the manner in which the corporation known as 
 the Collateral Loan Association shall sell unredeemed pawns or pledges. Laws of 1884, 
 C;hap. 543, as amended by Laws of 1885, Chap. 503. The act concerning pawn- 
 brokers also prescribes the manner in which pawns or pledges shall be sold. Laws of 
 1883, Chap. 508, as amended by Laws of 1890, Chap. 240. See also, Penal Code, 
 §§ 353—355. 
 
 The statutes of California require the pledgee to give actual notice to the pledgor 
 of the time and place at which the property pledged will be sold, at such reasonable 
 time before the sale as will enable the pledgor to attend (Cal. Civil Code, § 3002), unless 
 notice is waived (Id. § 3003), and also recjuire that a sale by a pledgee of property 
 
Pledges oe Pawns. 221 
 
 § 288. The pledgee's right to sell may be modified, enlarged or re- 
 stricted by the circumstances and purpose of the pledge. A pledge of 
 stocks, as we have seen, puts the property within the power of the 
 pledgee ; and a pledge of goods in the hands of a carrier, by a delivery 
 of his receipt or the bill of lading as a collateral security for the accept- 
 ance of a draft drawn on the consignee, on a discount of the draft, 
 transfers the title to the property. It vests the title in the party dis- 
 counting the draft, in trust to transfer it to the drawee on his accept- 
 ing the draft, or on his refusal, to sell the goods and pay the draft. 
 The transaction is more like a mortgage than a pledge, because it is 
 held to transfer the title ; it is like an assignment.; it enables the assignee 
 
 pledged must he made at public auction in the manner and upon tlie notice to the 
 public usual at the place of sale in respect to auction sale of similar property, and 
 must be for the highest obtainable price. Id. § 3005. 
 
 The statute in Massachusetts provides a way in which chattel mortgages and pledges 
 may be foreclosed. Gen. Statutes of 1860, pp. 766, 767, § 9: " The holder of personal 
 property in pledge for the payment of money, or the performance of any other thing, 
 may, after failure to pay or perform, give written notice to the pledgor that he intends 
 to enforce payment or performance by a sale of the pledge, and such notice shall be 
 served, and together with an affidavit of service be recorded in the clerk's office of the 
 city or town where the pledgee resides," three weeks before the sale. The notice 
 of sale must be reasonable. Brackett v. Bullard, 12 Met. 308. The notice may be 
 given immediately, where a chattel mortgage is given to secure the payment of a note 
 due on demand. Southwick v. Hapgood, 10 Cush. 119. Notice of an intention to 
 foreclose is tantamount to a demand of the amount due. Howe v. Bemis, 2 Gray, 203. 
 
 § 10. "If the money to be paid, or other thing to be done, is not paid or performed, 
 or tender thereof made within s*xty days after such notice is so recorded, the pledgee 
 may sell the pledge at public auction and apply the proceeds to the satisfaction of the 
 debt or demand, and the expenses of the notice and sale, and any surplus shall be 
 paid to the party entitled thereto, on demand." 
 
 § 11. " The preceding sections shall not authorize the pledgee to dispose of the 
 pledge contrary to the terms of the contract under which it is held, nor limit his right 
 to dispose of it in any other manner allowed by the contract or the rules of law." 
 
 The holder of any collateral security for the payment of a debt is liable to be 
 pimished by fine or imprisonment for any sale, pledge or disposition of the same with- 
 out authority, before the debt secured becomes due. Gen. Statutes, 803, § 64. 
 
 " In transfers of stocks as collateral security, the debt or duty which such transfer 
 is intended to secure shall be substantially described in the deed or instrument of 
 transfer. A certificate of stock issued to a pledgee or holder of such collateral security 
 shall express on the face of it that the same is so holden; and the name of the pledgor 
 shall be stated therein, who alone shall be responsible as a stockholder." A creditor 
 of the shareholder has a right to examine the record of such transfer. Gen. Statutes, 
 p. 38.5, §§ 13, 14, New Hampshire. The statute gives and defines various liens, and 
 provides a mode of foreclosing them; it allows the lienholder, byway of pledge, to sell 
 the property at auction, on three weeks' notice of the time and place of sale. The 
 notice with affidavit of service and an account of the sale are to be recorded in the 
 town clerk's office. Gen. Statutes (1867), 260. 
 
222 Law of Bailments. 
 
 to dispose of the goods and apply the proceeds towards the payment of 
 the draft.^ 
 
 A draft in the usual form, drawn against a consignment of goods, 
 does not give the payee or holder any lien on the goods, or upon their 
 proceeds.- But such ^ draft, with a letter of advice to the consignee 
 that the same is to be paid out of the proceeds of the sale, appropriates 
 the goods to that purpose ; and if the consignee accepts the consign- 
 ment and promises to honor the draft, he must hold the fund subject 
 to that order." So where an order is drawn on the custodian of a fund, 
 directing that it be paid to a party named for value, or where the drawer 
 is indebted to the payee, the order, being assented to by the drawee, is 
 equivalent to an equitable assignment of the moneys ; it is an appropri- 
 ation of the fund to the payment of the draft.* It binds the party on 
 whom it is drawn. 
 
 § '-:S9. Where the title to goods is transferred as a security for a 
 draft or for advances, the transferee has the power to dispose of the prop- 
 erty, without going through any process of foreclosure.'' He holds the 
 goods like an assignee, in trust ; the transfer is in legal effect a chattel 
 mortgage ; " it leaves a residuary interest in the mortgagee, which may 
 be reached by his creditors ; ' and it enables him to deal with the prop- 
 erty as owner. A defeasance accompanying the transfer renders it a 
 mortgage ; to be foreclosed as such, in the discretion of the mortgagee ' 
 
 1 Bank of Rochester v. Jones, 4 Denio, 489; S. C. 497; Allen r. Williams, 12 Pick. 
 297; The City Bank v. The E., W. & 0. E. E. Co., 4-1 X. Y. 13G; Cayuga Co. ISTat. 
 Bank v. Daniels, 47 IST. T. 031 ; The Marine Bank of «r'lucago v. Wright, 48 IST. Y. 1. 
 A pledge of slocks ■with power to hypothecate the same, and afterward return like 
 stock, is valid. Ogden v. Lathrop, (j'> N. Y. l.JS. 
 
 2 Cowperthwaite v. Sheffield, 1 Sandf. 416, 449; S. C. 3 X. Y. 243, 2.51; Wmter v. 
 Drury, 5 N. Y. 525; Chapman v. White, 6 N". Y. 412. 
 
 " Lowery v. Steward, 3 Bosw. 50.5 ; S. C. 25 X. Y. 239. 
 
 "Parker v. City of Syracuse, 31 X". Y. 370; Shuttleworth v. Bruce, 7 Eobt. 160; 
 Edwards on Bills and Notes, 379, 421-124; Brill v. Tuttle, 81 X. Y. 454; Ehrichs v. 
 De Jlill, 75 X. Y. 370; Eisley v. Smith, 04 X. Y. 576; Mrmger v. Shannon, 61 X. Y. 
 251; Lewis v. Berry, 64 Barb. 593; Lauer v. Dunn,' 115 N. Y. 405; Stevens v. Ogden, 
 130 X. Y. 182; Conselyea v. Blanchard, 103 X. Y. 222. 
 
 ^ These cases relate to choses in action: Eno v. Crooke, 10 X. Y. 60; Smith v. 
 Miller, 25 X. Y. 019; Breese v. Bange, 2 E. D. Smith, 474. ,See Peck v. Morrell, 26 
 Vt. 080; 10 Bosw. 332; Sherman v. Elder, 24 X. Y. 381; Farmers & :\Iechanics' Xat. 
 Bank v. Logan, 74 X. Y. 508; Dows v. Xat. Exch. Bank, 91 U. S. Gls. 
 
 « Thompson v. Blanchard, 4 X. Y. 303. The chattel mortgage is void as against third 
 parties, unless filed; but valid as between the partii-s. Marsh v. Lawrence, 4 Cowen, 
 461; Brown V. Bement, 8 John. 90; Ackley v. Finch, 7 Cowen, 290. 
 
 7 Smith V. Beattie, 31 X. Y. 542; Leitch v. Hollister, 4 X. Y. 211. 
 
 8 Langdon v. Buel, 9 Wend. 80; Hall v. Tuttle, 8 Wend. 375, 392. For the distinc- 
 tion between a mortgage and a pledge, see ante, §§ 17S, ISO, 240-248. 
 
Pledges or Pawns. 223 
 
 —essential in order to vest, in liim an absolute property, discharged 
 from the equity of redemption.^ 
 
 § 290. A commission merchant or factor who receives goods for sale, 
 and pays charges or makes advances upon them, acquires a lien upon 
 the property ; a particular lien upon the goods for charges and advances 
 made upon them, and also a general lien for the balance of his account 
 arising in the course of dealings between him and his principal.^ Acting 
 as a factor he has the right to sell in his own name as apparent owner, 
 without disclosing the name of his principal.' His authority to sell is 
 either express or implied ; having made advances on the goods, and be- 
 ing left without any special instructions, he has an implied right to sell 
 for his reimbursement.* And the owner has the right to control the 
 sale ; to prescribe the price, time and conditions of the sale, subject 
 only to the factor's lien.'' As an agent, the factor must follow his 
 instructions, whether given before or after the advances are made ; * and 
 he cannot depart from them and sell for his own benefit, without first 
 calling upon his principal to reimburse his advances. His authority to 
 sell is coupled with an interest in the goods, and it cannot be wholly 
 revoked ; hence it is held that the factor may sell even contrary to 
 instructions, and for his own benefit, after having given the owner a 
 reasonable notice of his intention to do so, with an opportunity to reim- 
 burse his advances. His position is like that of a pledgee, after his 
 authority to sell has been recalled ; he must demand payment, and 
 notify his principal of his intention to sell ; but need not, it would 
 seem, notify him of the time and place of the intended sale.' 
 
 § 291. A trustee or agent is not allowed to assume a position in which 
 his interest will come in conflict with his duty ; where he sells as a 
 
 1 Hoyt V. Martense, 16 N. T. 231. 
 
 2 Edwards on Factors and Brokers, §§ 71-78; Myer v. Jacobs, 1 Daly, 32; Bowling 
 Green Savings Bank v. Todd, 52 N. Y. 489, 491; Bryce v. Brooks, 26 Wend. 367; 
 Knapp V. Alvord, 10 Paige, 205. 
 
 3 Barring v. Come, 2 Bam. & Aid. 137, 148; Bryce v. Brooks, 26 Wend. 367; Higgins 
 V.Moore, 34 N. T. 417. 
 
 * Blaokman v. Thomas, 28 N. T. 67; Beadles v. Hartmus, 7 Baxter, 476. 
 
 5 Raleigh V. Atkinson, 6 Mees. & Wels. 670; Bell v. Palmer, 6 Co-n-. 128; Marfield 
 V. Goodhue, 3 N. Y. 62. 
 
 8 Marfield v. Goodhue, supra; Blot v. Boiceau, 3 K. Y. 78; Ealeigh v. Atkinson, 
 6 Mees. & Wels. 670; Hilton v. Vanderbilt, 82 N". Y. 591; Casson v. Field, 52 N. Y. 
 Supr. Ct. 196. 
 
 ' Frothingham v. Evertson, 12 N. H. 239, 242; Parker v. Brunker, 22 Pick. 40. It 
 has been suggested that the factor is not bound to observe instructions given after 
 advances made. Brown v. McGrau, 14 Peters, 479. But the rule is otherwise, as stated 
 in the text; Smart v. Sanders, 54 Eng. Com. Law, 379; unless there be an agreement 
 between the parties ; Milliken v. Dehon, 27 N. Y. 364. 
 
224 Law of Bailments. 
 
 trustee, he is not permitted to purchase as an individual, directly or 
 indirectly. The doctrine is of equitable origin, designed to close the 
 door agamst temptation ; it allows the injured party to set aside the 
 sale and take the property ; it applies to sales of both personal and real 
 estate.! -^^^-^ ^q ]iave one important exception to this general rule ; 
 the practice in this State, continued from a very early day, allows 
 mortgagees to become purchasers at sales conducted by them, under 
 powers contained in mortgages of real estate.^ The statute allows the 
 mortgagee to purchase the premises fairly and in good faith." The 
 same thing is allowed, where a sale is had under a decree in an action 
 of foreclosure; * the exception does not, however, extend to a sale made 
 and conducted by a trustee.^ The trustee is not allowed to acquire and 
 hold the property, through a sale made by himself ; the law does not 
 stiffer him to take advantage of his position, which is one of confidence, 
 and purchase the property in his own name or in the name of another 
 person." Though the purchase be not void at law, it is voidable at the 
 suit of the party for whom the trustee acts. 
 
 § 292. The pledgee holds the property in his hands on a trust, and 
 where he proceeds to sell on notice, he is not allowed to become the pur- 
 chaser ; and if he does, the sale is voidable at the election of the pledgor, 
 and the bailment continues unaffected.' The pledgor may, however. 
 
 ' Davoue v. Fanning, 2 John. Ch. 252 ; De Caters v. Le Eay De Chaumont, 3 
 Ch. 178; Fulton v, 'Whitney, 66 X. Y. .548; Bennett v. Austin, SI N. Y. :50S; Case v. 
 Carroll, 35 N. Y. 385. See Code Civil Pro. § 1676; Scholle v. Scholle, 101 N. Y. 167, 
 171. A party entitled to the income of an estate for life cannot pledge it to the trustee 
 holding the estate. Van Epps v. Van Epps, 9 Paige Ch. 238 ; Bank of Orleans v. 
 Torrey, 9 Paige, 049; S. C. 7 Hill, 260; Iddings v. Brueu, 4 Sandf. Ch. 223, 263; Moore 
 V. Moore, 5 X. Y. 256; Bain v. Brown, 56 X. Y. 285. Where a trustee has an interest 
 to protect by bidding at the sale of trust property, and he makes special application 
 to the court for permission to bid, which, upon a hearing of all the parties interested, 
 is granted by the court, then he can make a pm-chase which is valid, and under which 
 he can obtain a perfect title. Scholle v. Scholle, 101 N. Y. 167, and cases cited. 
 
 2 Bergen v. Burnett, 1 Caines' Cas. 1-19; Slee v. Manhattan Co., 3 Paige, 48, 73; 
 Jackson v. Golden, 4 Cowen, 266, 275. 
 
 3 3 R. S. 861, 5th ed. * Rules of Court, Xo. 73. 
 
 s Slade V. Van Vechten, 11 Paige Ch. 21. The fact that the formal leave to buy, 
 which is usually granted to the parties in a foreclosure or partition sale, has been 
 inserted in the judgment, is not sufBcient to enable a trustee to purchase the trust 
 estate. Such a provision is inserted in the judgment merely to obviate the technical 
 rule that parties to the action cannot buy, and is not intended to determine equities 
 between the parties to the action, or between such parties and others. Fulton v. 
 Whitney, 66 X. Y. 548; Torrey v. Bank of Orleans, 9 Paige, 649; Conger v. Ring, 
 11 Barb. 356; Scholle v. Scholle, 101 X. Y. 167. 
 
 6 Gardner v. Ogden, 22 X. Y. 327; Jewett v. ]Miller, 10 X. Y. 402. 
 
 ' Bryan v. Baldwin, 52 X. Y. 232; Duncomb v. Xew York, H. & X. R. R. Co., 84 
 
Pledges ok Pawns. 225 
 
 ratify the sale, and where this is done the sale is valid for all pur- 
 poses.* 
 
 § 293. "We have seen in passing that a pledgee has no implied right 
 to sell notes and ordinary choses in action ; and it is settled that where 
 the contract of pledge is silent on the subject, he has no right to sell 
 them at public or private sale. The right to sell and apply the proceeds 
 of goods and chattels and stocks is based upon the presumed intention 
 of the parties ; and this exception is based upon the same ground, namely, 
 that it cannot have been the intention of the parties to subject to the 
 hazards of a sale a species of property for which there is no reliable 
 market.^ The law therefore infers that the true intent of the transac- 
 tion is, that the pledgee shall receive the moneys on the securities as 
 they fall due, or collect them by suit at his option ; a right which he 
 has under the contract, where he is expressly authorized to sell the secu- 
 rity.' The contract imports an authority to collect the collaterals ; ' and 
 hence the pledgee may sue and recover upon a note held as a pledge, 
 though not indorsed over to him by the pledgor ; ° the same rule now 
 held in favor of the donee of like securities.* The right to collect the 
 original debt remains unaffected by the pledge ; unless restrained by the 
 
 N. T. 190, 205; Roach v. Duckworth, 95 :N. T. 391, 402; Hamilton v. Schaack, 16 
 Weekly Dig. 423; Cal. Civil Code, § 3010. And see Canfield v. MLnneapolis Agricul- 
 tural, etc., Assoc, 14 Fed. Eep. 801, holding that a purchaser from the purchasing 
 pledgee, with notice of the facts, takes only the title which the pledgee liad before the 
 sale. The rule prohibiting the pledgee from becoming the purchaser at the sale of the 
 pledge applies to a sale, under an execution issued upon a judgment recovered in an 
 action brought by the pledgee against the pledgor to recover the debt secured by the 
 pledge. Duden v. Waitzfelder, 16 Hun, 337. But see Adams v. Coons, 37 La. Ann. 
 305; Clark y. Holland, 72 Iowa, 34. A special partner may piu-chase on a sale of a 
 pledge held by the firm. Lewis v. G-raham, 4 Abb. Pr. IOC. 
 
 1 Bryan y. Baldwin, 52 K. T. 232; Roach v. Duckworth, 95 N. Y. 391, 402; Hill v. 
 Finigan, 62 Cal. 426. See Olcott v. Tioga R. E. Co., 40 Barb. 179, 190. The rule 
 that the pledgee cannot buy at his own sale of the pledged property may be waived by 
 express agreement of the parties. Chouteau v. Allen, 70 Mo. 290. The assent to 
 such purchase may also be presumed where the facts are notorious and no dissent is 
 shown. Carroll v. Mullamphy Savings Bank, 8 Mo. App. 249. 
 
 2 Wheeler v. Newbold, 16 N. T. 392; S. C. 5 Duer, 29; Strong v. Nat. Mechanics' 
 Banking Asso., 45 N. Y. 720; ante, § 238. The rule does not apply to government 
 bonds or the bonds of a corporation. Morris Canal, etc., Co. v. Lewis, 12 N. J. Eq. 
 It. 323; 3 Duer, 660; Jessup v. City Bank, 14 Wis. 331; Moody v. Andrews, 39 N. Y. 
 iSupr. Ct. 302. 
 
 8 Nelson v. Eaton, 26 N. Y. 410. 
 
 * Kelson v. Wellington, 5 Bosw. 178; Nelson v. Edwards, 40 Barb. 279. 
 
 6 Louisiana State Bank y. Gaiennie, 21 La, Ann. E. 555; White v. Phelps, 14 Minn. 
 E. 27. 
 
 6 Sessions v. Moseley, 4 Cush. 87; Bates v. Kempton, 7 Gray, 382; Chase v. Red- 
 ding, 13 Gray, 418; Brown v. Brown, 18 Conn. 410; Westerlo v. De Witt, 36 N. Y. 340. 
 
 15 
 
226 Law of Bailments. 
 
 contract the creditor may prosecute all the remedies given to him by- 
 law, at the same time. After paying the amount due to him, with the 
 costs and expenses of collection, the surplus, when more is collected, 
 belongs to the pledgor.^ 
 
 § 294. Under an assignment of property to indemnify a surety, the 
 assignee is bound to take charge of the property and convert it into 
 money, in the due execution of the trust.^ The surety and also the 
 creditor is entitled to have the property and aU collaterals applied 
 towards the payment of the debt; and may enforce this right by a bill 
 in equity.^ The assignee has an implied power to sell ; and it is his duty 
 to proceed with diligence.' Unless authorized to sell at private sale, 
 his true course is to sell at auction, on a reasonable notice of the time 
 and place ; for cash, unless authorized by statute to sell on a credit.^ 
 
 Where a mortgage of a third person is assigned by the mortgagee as 
 collateral security for his own debt, the transaction is in substance a 
 mortgage or pledge of the transferred security. The assignee takes the 
 title with the power of sale contained in the mortgage, and may fore- 
 close it in his own name. If the assignee forecloses the mortgage with- 
 out making the assignor a party defendant so as to foreclose his right, 
 and purchases the mortgaged premises at the sale, such foreclosure and 
 purchase by the assignee, as against the assignor, works no other result 
 than to substitute the land for the mortgage in the hands of the assignee, 
 and to leave it subject to the assignor's right by payment of the debt 
 to reclaim and hold his own property discharged of the assignee's hen 
 upon it. If on the foreclosure sale the property is bid in by a stranger, 
 the right of the assignor attaches to the purchase money.^ The assignee 
 may so make the assignor a party defendant in the foreclosure action 
 that the assignor's equity, as well as that of the mortgagor, will be in- 
 volved in the judgment and extinguished by the sale.' 
 
 § 1^9;:). When a pledge is delivered or a chattel mortgage is given to 
 
 1 Plants, etc., Co. v. Falvey, 20 Wis. R. 200; Hilton v. Waring, YWis. 492; 98 Mass. 
 303; !«) Mass. 338; .Sirvens v. Bell, 6 Mass. 339; Lawrence v. Maxwell, 53 N. T. 19; 
 Tarwell v. Importers', etc., Xat. Bank, 90 N. T. 483. 
 
 - Keyes v. Brush, 2 Paige, 3]1. 
 
 8 Pratt T. Adams, 1 Paige, Gl.j, 627; Ward v. Lewis, 4 Pick. 518; Pitts v. Congdon, 
 2N. T. 352; Farwell v. Importers', etc., jSTat. Bank, 90 N. T. 4S3, 491; Wright v. 
 Austin, 50 Barb. 13. 
 
 * Hart V. Crane, 7 Paige, 37. 
 
 ^ Nicholson v. Leavitt, r, N. Y. 510. 
 
 e Slee V. Manhattan Co., 1 Paige, 48, 52, 79; Hoyt v. Martense, 10 X. Y. 231; Mat- 
 ter of Gilbert, 104 N. Y. 200; Dalton v. Smith, SOJir. Y. 170; Case v. Carroll, 35 X. Y. 
 385, 390. 
 
 ' Bloomer v. Sturges, 58 X. Y. 168. 
 
Pledges on Pawns. 227 
 
 one person, as a security to two or more persons, the pledgee or party- 
 holding the security is bound to fulfill the terms of the contract ; it is 
 his duty to convert the property into money witMn a reasonable time, 
 and apply it upon the debts according to the agreement of the parties. 
 He is not at liberty to postpone the sale, or hold the property at his 
 pleasure.^ 
 
 § 296. The party holding a pledge as security for a debt due to him- 
 self is not obliged to proceed and sell it within any given time ; it is for 
 the debtor to initiate active measures, and unless he does so he cannot 
 complain of the pledgee on account of a loss happening from mere 
 delay .'^ The creditor is not bound in the first instance to resort to the 
 property for the payment of the debt.' Neither is he prevented from 
 collecting his debt, by attaching or levying upon and selling the prop- 
 erty.^ "Without doubt he is bound to take all proper steps to preserve 
 the pledge, and this duty may include the bringing of a suit where that 
 becomes essential to its preservation.^ 
 
 A party who sells under a power is not bound to sell at once all the 
 property covered by the power, and in many cases it would be an act of 
 great oppression to do so. This is clearly the rule where the power is 
 to sell real estate ; and there does not appear to be any reason why it 
 should not apply where the power is to sell personal property. The 
 mortgagee or pledgee of goods exercises a trust in the act of selUng 
 them, and is responsible as a trustee for the way in which he conducts 
 the sale. The authority is exhausted, as soon as a sufficient sum is 
 realized to satisfy the debt secured.* 
 
 1 Norton v. Squire, 16 John. E. 225; Marshall v. Bryant, 12 Mass. E. 321; Pothonier 
 V. Dawson, Holt's N. P. E. 386; ante, § 273. 
 
 2 Granite Bank v. Elchardson, 7 Met. 407; Word v. Morgan, 5 Sneed, 79. See Min- 
 neapolis, etc., Co. V. Betcher, 42 Minn. 210; Cooper v. Simpson, 41 Minn. 48; Gilbert 
 V. Marsh, 12 Hun, 519. 
 
 ^Butterworth Y. Kennedy, 5 Bosw. 143; Elder v. Kouse, 15 Wend. 218; Case v. 
 Boughtou, 11 Wend. 106; Bank of Eutland v. Woodruff, 34 Vt. 89; Townsend v. 
 Newell, 14 Pick. 332; Eozett v. McClellan, 48 El. 345; 37 Supr. Ct. (5 J. & S.) 315; 
 Moody V. Andrews, 39 Supr. Ct. 302; 64 N. T. 641; James v. Hamilton, 2 Hun, 630; 
 63 N. T. 616; Gambling v. Haight, 59 N. T. 354; Ehrlich v. Ewald, 66 Cal. 97. 
 
 * Arendale v. Morgan, 5 Sneed, 704; Buck v. IngersoU, 11 Met. 226; Allen v. Clark, 
 65 Barb. 563; Lincoln T. Linde, 27 Abb. N. C. 278. It is held in Massachusetts that 
 the creditor, by attaching the goods on other demands, does not lose his lien as a 
 pledgee where he gives the ofllcer notice of his intention to retain it. Townsend v. 
 Newell, supra, and Whitaker v. Sumner, 20 Pick. 399, 406. 
 
 6 Ante, §§ 238, 240-244. 
 
 6 Charter v. Stevens, 3 Denio, 33; Briggs v. Oliver, 68 X. Y. 336, 339. The remedy 
 for an unfair sale is by a bill to redeem. Stoddard v. Dennison, 2 Sweeny, 54; 38 How. 
 Pr. 296; 7 Abbott Pr. (N. S.) 309. 
 
228 Law of Bailments. 
 
 § 297. Instead of selling on his own responsibility, the pledgee has a, 
 right to file a bill in equity and proceed to a judicial sale of the pledge; 
 and this is clearly the proper course to pursue, where a demand cannot 
 be made or notice given of the sale.^ For a different reason, it is also 
 the true remedy where the pledge is given to secure the performance of 
 a contract, or to secure the payment of an unliquidated demand ; ^ or 
 where for any reason an account must be taken to ascertain the amount 
 due to the pledgee.^ A foreclosure in equity is sometimes advisable for 
 the purpose of securing an equitable sale or disposition of the property ; * 
 and it is necessary to enable the pledgee to purchase the property— a 
 permission which a court of equity may give in its decree, acting on the 
 same principle which permits the mortgagee to purchase at a sale de- 
 creed in the foreclosure of a mortgage upon real estate. 
 
 § 298. RestiPution. The creditor's duty to restore the pledge on re- 
 ceiving satisfaction of his demand, does not arise out of the contract of 
 pledge ; it is the dictate of law, based on the equity of the situation.* 
 Hence a stipulation in a contract of pledge, defeating or waiving the 
 right to redeem after a certain day, is invalid ; our courts will not en- 
 force it.° Public policy does not permit the debtor to bargain away 
 the right of redemption in a mortgage, in the act of executing it ; or to 
 surrender the right of redemption in a pledge, in the act of delivering it 
 
 1 Cortelyou v. Lansing, 2 Caines' Cas. 201; Garlick v. James, 12 John. E. 159; 
 Stearns v. Marsh, 4 Denio, 227; Strong v. National Mechanics' Banking Association, 
 45 N. T. 718, 720. 
 
 2 Vaupell V. Woodward, 2 Sand. Ph. R. 143. See Farmers & Merchants' Nat. Bank 
 V. Eogers, 17 State Rep. )iHl. The Code provides that an action may be maintained to 
 foreclose a lien upon a. chattel, for a, sum of money, in any case where such a lien 
 exists at the commencement of tlie action, and that the action may be brought in any 
 court of record or not of record whicli would have jurisdiction to render a judgment in 
 an action founded upon a contract for a sum equal to the amount of the lien. See 
 Code of Civil Pro. §§ 1737-1741. Such an action may be resorted to to foreclose the 
 lien created by an assignment of property as security for a debt. Blake v. Crowley, 
 44 Hun, 344. 
 
 5 See Bartlett v. Johnson, 9 Allen (Mass.), 530; and the transaction disclosed in 
 Yan Blarcom v. Broadway Bank, 9 Bosw. 532; 37 N. T. 540; and in Oneida Bank v. 
 Ontario Bank, 21 N". T. 490. 
 
 * Donohoe v. Gamble, 3S Cal. 340. 
 
 5 Kingsbury v. Phelps, Wright (Ohio), 370; Beatty v. Sylvester, 2 Nev. 22S; Merri- 
 fleld V. Baker, 9 Allen, 29; 31 N. Y. .-)42; 13 Barb. 629. 
 
 « Clark V. Henry, 2 Cowen, 324, 330-333; Houser v. Kemp, 3 Penn. St. 208; William- 
 son v. Culpepper, 16 Ala. 211; Bright v. Wagle, 3 Dana (Ky.), 252; Brownell v. 
 Hawkins, 4 Barb. 491; Kimball v. Hildreth, 8 Allen (Mass.), 167; ante, § 250. In 
 Lawrence v. Maxvrell (53 N. T. 19) it is held that an authority to transfer the stocks 
 pledged at pleasure is inconsistent with a contract of bailment, and that a custom will 
 BOt avail to work so great a change in the agreement. 
 
Pledges or Pawns. 229 
 
 as a collateral security. Besides opening the door to oppression, stipu- 
 lations of this sort, carried into effect, would wholly chanye the nature 
 of the transaction, converting the mortgage into a deed and the pledge 
 into a contract for property.^ 
 
 A subsequent agreement made on equitable terms, waiving the right 
 to redeem, may be enforced ; on the same ground that a mortgagor may 
 afterwards convey his equity of redemption.^ 
 
 § 299. The proceeds of the pledge are to be applied first to the pay- 
 ment of the debt ; that being satisfied, the balance belongs to the 
 pledgor. Where the pledge produces no income, and it is sold by the 
 pledgee, the proceeds applicable to the debt are fixed, by deducting from 
 the sum received the expenses incident to the sale, and the necessary 
 expenses incurred in the preservation of the pledge.^ When the pledge 
 consists of choses in action, and the pledgee endeavors to render them 
 available by suit, he is entitled to recover the amount due upon them ; ' 
 recovering more than sufficient to satisfy his demand, he holds the 
 balance in trust for the pledgor ; ^ i. e., the balance after defraying 
 the expenses of collection. 
 
 There is every reason why the pledgee should be allowed his necessary 
 expenses in keeping the pledge, or in rendering it available. Where 
 he receives an indorsed note not yet due, as a collateral security, he is 
 bound to have it duly protested, and to do those acts which will preserve 
 the liability of the indorser ; and there can be no reason why he should 
 not be reimbursed the expenses incurred by him in so doing." For the 
 same reason he ought to recover or be allowed the expenses of a suit 
 upon the collateral. The pledge is delivered for the mutual benefit of 
 the parties to the contract ; and the collection, or the effort to collect the 
 collateral security is as much for the benefit of the debtor as it can be 
 for the creditor. Besides, the creditor is legally entitled to recover and 
 receive the face of his demand ; and though it may be presumed that 
 he willingly undertakes the personal trouble and care of the collection, 
 it can hardly be inferred that he also assumes to pay the actual costs 
 
 12 Kent's Comm. 583. 
 
 2 Stevens v. Bell, 6 Mass. 339. See "West v. Crary, 47 N. T. 423; Hathaway v. Bray- 
 man, 42 N. Y. 322. The pledgor may also waive his right to redeem hy ratifying an 
 irregular sale not sufficient of itself to cut off the right of redemption. Earle v. Grant, 
 14 R. I. 228; Hill v. Finigan, 62 Cal. 426; Koach v. Duckworth, 95 N. T. 391, 402; 
 Bryan v. Baldwin, 52 N. T. 232. 
 
 ^ Code Louisiana, Art. 3134. 
 
 * Dewey v. Bowman, 8 Cal. 145; Comstock v. Smith, 23 Maine, 202; Soule v. White, 
 14 Maine, 436. 
 
 5 Treadwell v. Davis, 34 Cal. 601. 
 
 6 Eussell V. Hester, 10 Ala. K. 535; ante, §§ 238-242. 
 
230 Law op Bailments. 
 
 and disbursements of the prosecution ; since tliat would be to cast upon 
 him another man's burden.^ 
 
 § 300. The pledgee is boUnd to account for the income, profits or in- 
 crease of the pledge. Where the pledge consists of stocks or securities 
 bearing interest, he must account for the dividends or interest received 
 thereon. As the title to the pledge does not pass, it is but a necessary- 
 conclusion, both of reason and law, that its fruits shall accrue to the 
 owner ; for it is the nature of property in all its forms to yield a revenue 
 to its proprietor : lands, in the return of an annual rent ; stocks, in the 
 dividends which they yield ; and notes and bonds, in the interest which 
 they bear as the regular fruitage of the year.^ On the same groimd the 
 bailee must account for the rental value or hire of chattels, where he 
 gains a benefit from the use of them ; and for the increase of domestic 
 animals held in pledge.'' But he holds the income or increase as he does 
 the pledge itself, to apply upon the debt.^ 
 
 § 301. Where the pledgee converts the pledge to his own use, or 
 where the mortgagee of real or personal estate appropriates the prop- 
 erty as his own, the transaction operates as a payment, to the extent of 
 the value of the property. If the pledge or the estate covered by the 
 mortgage be equal in value to the debt, the debt is paid.'^ Though a 
 mortgage of real estate does not convey the title, it does enable the 
 mortgagee who acquires possession after forfeitui-e to hold the prem- 
 
 1 Comstock V. Smith, supra; Foot v. Brown, 2 McLean, 369. It is now held that 
 the creditor may bring suits on all the collaterals held by him and is to be allowed the 
 costs and e.^penses paid by him in each suit, in account with his debtor. Plants, etc., 
 Co. V. Falvey, 20 Wis. E. 200; Hilton v. Waring, 7 Wis. 492; ante, §§ 293, 242, 243; 
 Hurst V. Coley, 22 Fed. Eep. 183. 
 
 ^Hasbrook v. Vandevoort, 4 Sandf. R. 74, 596; 9 N. T. 1.53; Van Rensselaer v., 
 Jewett, 5 Denio, 135; 2 X. T. 135; Putman v. Wyley, 8 John. R. 532. 
 
 'Houtonv. Holliday, 1 Car. Law. Rep. 87; Davenport v. Tarlton, 1 Marsh. 244; 
 Ratcliff V. Vance, 2 Rep. Con. Ct. 239; Ross v. Norvell, 1 Wash. 14; Couckliu v. 
 Havens, 12 John. R. 314; Geron v. Geron, 15 Ala. 5S8 The law declared in these 
 cases remains good, though the subject has ceased to exist with the system of 
 slavery. 
 
 * All contracts to pay money give a right to interest as damages, from the time 
 when the principal became due. The interest is the civil fruit of the moneys due. 
 The revenue derived from labor is called wages; that derived trom stock or property 
 by the person who manages or employs it is called profit; that derived from money 
 or debts due is called interest; these are all of essentially the same nature, being the 
 regular harvest or return of either labor or capital, which is the produce of labor. 
 Eeid V. Rensselaer Glass Factory, 3 Cowen, 393; S. C. 5 Cowen, 587; Smith's Wealth 
 of Nations; Code Louisiana, Arts. 537, 540; Hume's History, Ch. 33; Williams y. 
 Sherman, 7 Wend. 109. 
 
 6 Case V. Boughton, 11 Wend. 106; Morgan v. Plumb, 9 Wend. 287, 292. 
 
Pledges or Pawns. 231 
 
 ises ; ^ and equity enables the mortgagor to redeem the property, by pay- 
 ■ ing the debt for which it is held as a security ; thus satisfying the debt 
 and restoring the surplus to the owner.^ On redeeming, the mortgagee 
 must ordinarily account for the net rents and profits ; " and a purchaser 
 in good faith, not aware of any right to redeem, may be allowed his 
 expenses for valuable improvements.^ 
 
 § 302. Where a person delivers his property as a pledge for the pay- 
 ment of another man's debt, he is to be treated, it should seem, as stand- 
 ing in the situation of a surety ; and if he were to be so considered in 
 aU respects, he would be entitled to call upon the creditor to proceed 
 and enforce the debt against the debtor.^ For some purposes, it is quite 
 certain that he is entitled to protection as a surety." If by a sale or in 
 some other way the proceeds of the pledge are applied in payment 
 of the debt, he is evidently entitled to any remedy, lien, or security held 
 by the creditor against the debtor or his property ; because up to the 
 value of the pledge he stands as surety for the debt. In equity, if not 
 at law, he has the right to reach any security or property of the debtor, 
 held by the creditor, and have it applied upon the debt, or in satisfac- 
 tion of his demand against the debtor, after he has paid the debt.' He 
 is entitled to the creditor's place by substitution, and the creditor is not 
 allowed to deprive him of that right ; * though not bound to active 
 diligence, he is prohibited from doing any act prejudicial to the surety.' 
 And where the surety, or party standing in the place of a surety, tenders 
 the expenses of active measures to collect, it may become the creditor's 
 duty to enforce his demand against the principal debtor.^" 
 
 § 303. When a pledge is delivered to secure the performance of a 
 
 1 Phyfe V. Eiley, 15 Wend. 248; Chase v. Peck, 21 N. T. 581, 586; Stoddard v. Hart, 
 23 IS". T. 556; Madison Ave. Bap .Ch. v. Oliver St. Bap. Cli., 73 ST. T. 82. 
 
 2 Henry v. Davis, 7 John. Ch. 49; 2 Cow. 324. 
 
 3 Bell V. Mayor, etc., of N. T., 10 Paige Ch. 49; Wetmore v. Eoberts, 10 How. Pr. 
 51; Madison Ave. Bap. Ch. v. Oliver St. Bap. Ch., 73 N. T. 82. 
 
 ^ Thomas v. Evans, 105 jST. T. 601; Miner v. Beekman, .50 N. T. 339. There being 
 no mistake in regard to the title, no allowance should be made for more than ordinary 
 repairs. See Scott v. Guernsey, 48 X. T. 106, 122. 
 
 5 King V. Baldwin, 2 John. Ch. 554; S. C. 17 John. R. 384; Strong v. Wooster, 6 
 Vt. 536. 
 
 8 Ingalls V. Morgan, 10 N. Y. 178; Eddy v. Traver, 6 Paige, 521. 
 
 ' Gibbs V. Mennard, 6 Paige, Ch. 258, 260; Hayes v. Ward, 4 John. Ch. 123; Ells- 
 worth V. Lockwood, 42 N. T. 89, 98; Kohler v. Matlage, 72 N. T. 259, 268. 
 
 8 Chester v. Bank of Kingston, 16 N". T. 336; Mathews v. Aikin, 1 K T. 595; Lewis 
 V. Palmer, 28 N. T. 271. 
 
 9 Schroeppell v. Shaw, 3 K. T. 446; Warner v. Beardsley, 8 Wend. 194; Bangs v. 
 Strong, 7 Hill, 250. 
 
 M Black Eiver Bank v. Page, 44 N. T. 453. 
 
 f 
 
232 , Law op Bailments. 
 
 contract, or to indemnify a surety, the pledgee has a right to retain it 
 until the contract has been fulfilled, or until the surety has been dis- 
 charged.i The rights and liabilities of the parties are fixed by the 
 terms of the contract; and nothing is more common than to take 
 securities of this nature, intended as an indemnity against Uability or 
 to insure the fulfillment of a contract.^ 
 
 § 304. A creditor sometimes takes several securities for the same 
 debt, and he cannot be compelled to yield up either until the debt is 
 paid.^ On discounting a note, there is nothing to prevent a bank from 
 taking a chose in action from the maker and a transfer of stock from 
 the indorser, as collateral security for its payment.* And though the 
 original debt be secured by a contract of guaranty, the creditor may at 
 any time take a further collateral security for its payment, without im- 
 pairing the prior securities. Provided he does not extend the time of 
 payment by a valid contract, or by necessary implication, the new 
 security received as a collateral does not affect the prior obligation.* 
 But the guarantor is discharged, where the creditor takes from the 
 debtor a new note for the debt payable at a future day ; thus extending 
 the time of payment till the new note falls due.^ 
 
 The creditor receiving from his debtor the note of a third person, 
 past due, as collateral security, is not at liberty to extend the time of 
 payment by a new contract ; it is with better reason his duty to use 
 diligence to collect it.'' And where a creditor receives a note or draft 
 on a debt, without any agreement that it is received in payment, it is 
 clearly his duty to take measures and have it properly protested.' 
 
 § 305. When the debtor is the owner and holder of bonds, bills or 
 notes made or drawn by other parties as business paper, his delivery of 
 them as collateral security for the payment of his debt has the same 
 legal effect as the delivery of chattels ; it is a pledge of his property. 
 
 1 Jewett V. Warren, 12 Mass. 300; West v. Green, 3 Jto. 219; Allgear v. Walsh, 24 
 Mo. App. 134. 
 
 ^ These cases relate to securities or pledges to indemnify an indorser. Seacord v. 
 Miller, 13 N. Y. 5.51; Denny v. Palmer, 5 Ired. N. C. Law, 610, 025; Holland v. Tur- 
 ner, 10 Conn. 308; Walters \. Munroe, 17 Md. 154; Haskell v. Boardman, 8 Allen, 38; 
 43 N. H. 557; 14 Wis. 380. 
 
 8 Chapman v. Clough, Vt. 123; Western Transp., etc., Co. v. Kilderhouse, 87 
 N. Y. 430. 
 
 * Union Bank v. Laird, 2 Wheat. 200. 
 
 5 Eemsen v. Graves, 41 N. Y. 471; Cary v. White, 52 N. Y. 138; Taylor v. Allen, 
 36 Barb. 294; 39 Barb. 610; Halliday v. Hart, 30 X. Y. 474. 
 
 " Hart V. Hudson, 6 Duer, 204; Place v. Mcllvain, .38 N. Y. 96. 
 
 ' Wakeman v. Gowdy, 10 Bosw. 2iX8. 
 
 « Dayton v. Trull, 23 Wend. 345 ; Woodcock v. Bennett, 1 Cowen, 711 ; Manney v. 
 Colt, 80 N. C. 300. See Gibson v. Tobey, 53 Barb. 10] . 
 
Pledges or Pawns. 233 
 
 The transaction is perfectly simple and plain. The debt is the consid- 
 eration for the contract of pledge.^ 
 
 When the debtor is entrusted with bills or notes, drawn, accepted or 
 indorsed for his accommodation without any restriction as to the use to 
 be made of them, he may also pledge them as security for the payment 
 of his debt ; the transaction authorizes him to do so.^ 
 
 "When the debtor is entrusted with negotiable paper, bills and notes, 
 drawn, accepted or indorsed for a special purpose, he has no right to 
 transfer or use them for any other purpose ; it is a breach of faith to 
 do so ; but since these instruments are negotiable, the party taking 
 them and giving value for them before they are due, without any 
 knowledge of the misuse or misappropriation, is allowed to hold and 
 recover on them.' He is not allowed to recover on them, where he 
 takes them after they are due ; ' or where he does not give value for 
 them.^ 
 
 When a party having the custody, as bailee or agent, of negotiable 
 bills and notes, wrongfully transfers them as collateral security for his 
 own existing debt, the transferee is not allowed to hold them as against 
 the true owner : not being a purchaser for value, it is not equitable that 
 he should in this way acquire another man's property." Paying value 
 for the paper and taking it fairly, the law allows him to hold it ; be- 
 cause it is not inequitable, while it subserves the general convenience.' 
 
 § 306. When an accommodation note is misappropriated, and deliv- 
 ered as a collateral security for indorsements to be made, and the same 
 
 1 Ante, § 222. 
 
 2 Agawam Bank v. Strever, 18 N. T. 502; Seneea Co. Bank v. Neap, 3 N. T. 442; 
 Bank of Chenango v. Hyde, 4 Cowen, 567 ; Continental Nat. Bank v. Townsend, 87 
 N. T. 8; Grocers' Bank v. Penfield, 69 N. T. 502; Tinsdale v. Murray, 9 Daly, 446. 
 But the pledgee cannot enforce an accommodation note against the accommodation 
 maker for any amount beyond that for which it was pledged, nor for any debt for 
 which it was not pledged. Continental Nat. Bank v. Bell, 125 N. T. 38. 
 
 = Ante, §§ 196, 197. 
 
 * Chester v. Dorr, 41 N. T. 279. 
 
 ^ Lawrence v. Clark, 36 N. Y. 128. The pledgee of an accommodation note, which 
 has been diverted from the purpose for which It was made by pledging it to secure a 
 debt past due, cannot enforce it against the accommodation maker or indorser. 
 Grocers' Bank v. Penfield, 69 N. T. 502; Continental Nat. Bank >-. Bell, 125 N. Y. 
 38, 42; United States Nat. Bank v. Ewing, 131 N. Y. 506. The transferee of negoti- 
 able paper who takes it knowing that it is transferred in violation of conditions or lim- 
 itations imposed by an accommodation maker, cannot hold and enforce it against such 
 maker. Benjamin v. Rogers, 126 N. T. 60. 
 
 "Coddington v. Bay, 20 Johns. R. 637; Stalker v. McDonald, 6 Hill. 93. See 
 Weaver v. Bardeu, 49 N. Y. 286; Cary v. White, 52 N. Y. 138. 
 
 ' Park Bank v. Watson, 42 N. Y. 4;^: Boyd v. Cummings, 17 N. Y. 101; Brookman 
 V. Metcalf, 32 N. Y. 591 ; Bank of X. V. v. ■S'anderhorst, 32 N. Y. 553, 556. 
 
234 Law of Bailments. 
 
 are made in good faith on ttie strength of it, the party so taking it is to 
 be treated as a honafide holder for value in the commercial sense— a 
 holder for value to the extent of the liability assumed.^ So where goods 
 are sold on an agreement that the notes of third parties are to be de- 
 livered as collateral for the purchase money, the seller receiving them 
 presently or within a short time after the goods are delivered holds 
 them for value.^ And he is entitled to recover on paper of this kind, 
 wherever he has parted ^^ith value in any form on taking it, or assumed 
 any new liability, or omitted any act affectmg his rights on the strength 
 of the paper.^ 
 
 § .307. The general rule that the party selling or transferring prop- 
 erty can convey no better title than he himself possesses, applies to 
 mortgages and pledges. The owner cannot be divested of his property 
 without his consent, either expressed or implied ; * and hence as a rule the 
 pledgee takes no greater interest than the pledgor possessed ; ^ and no 
 greater interest than the terms of the contract do actually convey." 
 
 It is an exception to the general rule, which allows a purchaser of 
 chattels in good faith, from a party who acquired them by a fraudulent 
 purchase, to hold the property as against the defrauded seller ; an ex- 
 ception based upon this consideration, that as between two innocent 
 persons, he who has parted with the possession of his goods must yield 
 to a bona fide purchaser from the party to whom the possession is con- 
 fided, with the indicia of title.^ And the same exception is enforced 
 in favor of a party making advances on the goods, on a transfer of the 
 title as a collateral security ; " and in favor of a party makuig a loan or 
 discount, on a transfer of stocks made by a person invested with the 
 title.^ The equitable ground supporting this exception, does not extend 
 
 1 Williams v. Smith, 2 Hill, 301; Merritt v. Korthern E. R. Co., 12 Barb. 605; Wat- 
 son V. Cabot Bank, 5 Sandf. 42:3; Case v. Mechanics' Bank. Association, 4 X. T. 166; 
 Smith V. Mulock, 1 Eobt. 56!). See Farmers & Citizens' Xat. Bank v. Xoxon, 45 
 X. T. V}2. 
 
 - Fenly v. Pritcbard, 2 Sandf. 151. 
 
 8 White V. Springfield Bank, 3 Sandf. 222; Youngs v. Lee, 12 X. T. 551 ; Brown v. 
 Leavitt, 31 N. T. 113; Meads v. Merchants' Bank, 25 N. Y. 143; Bank of St. Albans, 
 V. Gilliland, 23 Wend. 311; Ward v. Howard, 88 X. Y. 74; Phosnix Ins. Co. v. Church, 
 81 X. Y. 218; First Xat. Bank v. Tisdale, 84 X. Y. 6-55; Bookheim v. Alexander, 64 
 Hun, 458; Clothier v. Adriance, 51 X. Y. 322; Mayer v. Heidelbaeh, 123 X. Y. .332. 
 These cases illustrate the operation of the rule. 
 
 * Cleveland v. State Bank, 16 Ohio St. 330. 
 
 5 Campbell v. Parker, 9 Bosw. 322. 6 Luckey v. Gannon, 1 Sweeny, 12. 
 
 'Mowreyv. Walsh, 8 Cowen, 238; Rowley v. Bigelow, 12 Pick. 307; Ash v. Pat- 
 man, 1 Hill R. 302; Dows v. Greene, 24 X". Y. 638, 644; Lacker v. Rhoades, 45 Barb. 
 499. 8 "Winne v. McDonald, 5 Bosw. 130; 39 X. Y. 233. 
 
 8 McXeil V. Tenth National Bank, 46 N. Y. 325. 
 
Pledges or Pawns. 235 
 
 to the case of a pledge received as security for an antecedent debt ; nor 
 does it extend to a case where the transferee or party dealing with the 
 apparent owner, has knowledge of the title.^ The equity arises only in 
 favor of a purchaser, in good faith, for value ; or in favor of one who 
 comes into substantially the same position as a purchaser, for a valuable 
 consideration. 
 
 § 308. Where promissory notes are delivered as collateral security 
 for the payment of a usurious loan, which is declared illegal and void 
 by the statute, the lender cannot recover upon them against the bor- 
 rower ; nor can the party to whom he transfers them collect and apply 
 the proceeds on an existing debt. As collateral paper, the notes must 
 abide the fate of the principal debt to secure which they were delivered.^ 
 The transfer as security for a debt created in violation of law is itself 
 illegal ; the collateral partakes of the nature of the principal contract ; 
 hence the party taking cannot hold the pledge, as against the pledgor.' 
 But it is well settled that a stranger to the contract cannot insist upon 
 the invahdity of a usurious security ; * it follows that the makers of a 
 valid security, delivered as collateral on a usurious loan, cannot interpose 
 a defense on the ground of usury, when sued on the valid collateral ; 
 not being parties or privies, they cannot litigate the validity of the 
 transfer.^ 
 
 § 309. Whatever discharges and satisfies the original debt, necessarily 
 releases all accessary obUgations ; all collaterals and contracts of surety- 
 ship. A discharge of the debtor as a bankrupt or as an insolvent does 
 not have that effect ; it does not release a surety bound for its payment, 
 nor can it have any effect upon the contract of pledge.^ The assignee 
 of the insolvent or bankrupt takes subject to the hen ; and he has the 
 right to take back the pledge on the same terms as the debtor might 
 have done.' That is to say, the pledge being honestly made and not 
 
 1 Beeves v. Smith, 1 La. Ann. R. 379; Porter v. Parks, 49 N. T. 564. 
 
 2 Bell V. Lent, 24 Wend. 230. See Treadwell v. Archer, 76 N. T. 196. The vice of 
 usury follows a promissory note into the hands of a bona fide holder. Clafl in v. 
 Boormn, 122 N. T. 385. 
 
 ' Fish V. De Wolf, 4 Bosw. 573 ; Gaither v. Farmers & Mechanics' Bank, 2 Peters' 
 V. S. E. 37; Ramsdell v. Morgan, 16 Wend. 574; Keutgen v. Parks, 1 Sandf. 60. 
 
 ^Bullard v. Raynor, 30 N. T. 197; Billington v. Wagoner, 33 N. T. 31; Kay v. 
 Whittaker, 44 N. Y. 565. 
 
 « Williams v. Tilt, 36 N. T. 319. 
 
 « Bowery Savings Bank v. Clinton, 2 Sandf. 113; Storm v. Waddell, 2 Sandf. Ch. E. 
 494, 525. See Brown v. Nichols, 42 N. T. 26, as to the lien acquired upon equitable 
 assets by suit, Davenport v. Kelly, 42 N". T. 193; and as to the effect of a discharge, 
 see Ocean National Bank v. Olcott, 46 N. T. 12. 
 
 ' A preference may he void under the Bankrupt Act, and valid under the State law. 
 Dodge V. Sheldon, 6 Hill, 9; Seaman v. Stoughton, 3 Barb. Ch. R. 344. 
 
236 Law of Bailments. 
 
 coming within the prohibition of the statute, it creates a vested interest 
 in the pledgee, so that only a right to redeem vests in the assignee. 
 The discharge under the old bankrupt law was quite absolute; it 
 released the 1)ankrupt from all provable debts, claims, liabilities and 
 demands ; it extinguished them as subsisting causes of action. It did 
 this without assuming to mvalidate any collateral security ; it gave the 
 debtor a personal release, more efficient and much like the discharge 
 granted to an insolvent under the State law.^ 
 
 The debtor's incapacity to bind himself, from infancy or from cover- 
 ture, under the common law, does not avail a surety ; and on the same 
 ground, the mere invalidity of the original debt, constituting a defense 
 personal to the debtor, does not invalidate a contract of pledge, or a 
 guaranty of payment made by a party competent to contract.^ The 
 new engagement is not so based upon the original, that a defense on the 
 ground of a want of legal capacity to incur the debt will avail to annul 
 the collateral contract.^ 
 
 § 310. A creditor holding his debtor's property in any manner as a 
 security for the payment of his demand, and contract of suretyship 
 therefor, is obliged in equity to resort to the property, as the primary 
 fund for the satisfaction of the debt ; because it is just that the debtor's 
 property should be first applied in the payment of his debts.^ In taking 
 collateral securities from the debtor the creditor acts for the benefit of 
 the surety ; and he is bound, after taking them, to hold them for the 
 surety's protection.'^ And if he fails in this duty, he discharges the 
 surety ; but it is adjudged that an indorser is not a surety in such a 
 
 1 Tooker V. Bennett, 3 Caines' R. 4; Moore v. Paine, 12 Wend. 123, 126; Ellsworth 
 V. Caldwell, 27 How. Pr. 188; Ford v. Andrews, 'J AVend. 312; Cook v. Whipple, 55 
 N. T. 150; Wooden v. Frazee, 6 J. & S. 190. There is now no bankrupt law existing 
 in the United States ; but as the ecboes of the act are still to be heard in our courts, 
 it cannot be wholly ignored. 
 
 2 That the surety may be bormd though the principal is an infant or a married 
 woman, see St. Albans Bank v. Dillon, 30 Vt. 122; Kimball v. Xewell, 7 Hill, 116; 
 Whitworthv. Carter, 43 Miss. 01; Hicks v. Randolph, 59 Tenn. 352; Jones v. Cros- 
 thwaite, 17 Iowa, 3',i:!. The pledge by an infantmay be void; but it is not void on the 
 ground that the original debt is invalid. Kimball v. Newell, 7 Hill, 116; Edwards on 
 Bills and Notes, 218; and 20 Pick. 407; 30 Vt. 122; 7 N. H. 368; Davis v. Statts, 43 
 Ind. 103; Baldwin v. Van Deusen, 37 X. Y. 487. 
 
 3 Connecticut M. Life Ins. Co. v. The Cleveland C. C. R. R. Co., 41 Barb. 9; Mann 
 V. Eekford's Exors., 15 Wend. 502. 
 
 * Vartie v. Underwood, 18 Barb. 561. Here a mortgage covered the principal debtor's 
 and also his surety's property; held that the proceeds of the debtor's property must 
 be first applied. Wright v. Austin, 50 Barb. 13; 50 N. Y. 30ii; 56 X. T. 404. 
 
 6 Hayes v. Ward, 4 John. Ch. 123; Third Nat. Bank v. Shields, 55 Hun, 274; Grow 
 V. Garlock, 97 N. Y. 81. 
 
Pledges or Pawns. 237 
 
 sense that he is entitled to the protection of this rule.^ And it is not 
 under all circumstances the creditor's duty to exhaust the fund in his 
 hand before proceeding against the surety.^ 
 
 § 311. The pledgee is not bound to restore the pledge where it has 
 been lost without any fault on his part ; but where he refuses to return 
 the pledge on a tender of the debt due, and retains it until it becomes 
 worthless, he must account for its value at the time of the tender ; 
 being equal in value to the debt at that time, he is obliged to accept it 
 in full satisfaction.' His detention of the property being wrongful, the 
 law holds him answerable for it at all events during the unlawful 
 detention ; a rule of liability of which he cannot complain, since his 
 refusal to restore the property is an act of appropriation which renders 
 him liable for its value.* 
 
 § 312. Remedies. A right of property includes the remedies given 
 for its violation, and the means furnished by the law for its protection ; 
 and hence our investigations constantly branch out into the practical 
 vindication of acknowledged rights. Having followed this method thus 
 far, but little remains to be said under this division of the subject. 
 For a violation, by the pledgee, of the residuary or general right of 
 property remaining in the pledgor, the latter has an immediate remedy ; 
 by a suit on the contract, or by an action based on the tortious act. 
 He is entitled to recover either the property, or the damages he has 
 sustained, or his interest in the pledge.^ Under ordinary circumstances 
 his remedy is by an action at law ; and the action is to be chosen with 
 reference to the existing relations of the parties.^ The bailee's lien 
 entitles him to retain the property ; but where he attorns to another 
 party claiming the title, he is not allowed to hold the propertj?^ under 
 pretense of a lien upon it.' 
 
 1 Pitts V. Congdon, 2 K. T. 352; First Nat. Bank v. Wood, 71 N. T. 405; Third Nat. 
 Bank v. Shields, 55 Hun, 274. 
 
 2 Loud V. Sergeant, 1 Edw. Ch. 164; Gary v. Cannon, 3 Ired. Eq. 64. 
 
 'Griswold V. Jackson, 2 Edw. Ch. 461; Hope v. Lawrence, 1 Hun, 317; Lough- 
 borough V. McNevin, 74 Cal. 250. A tender of the amount due destroys the lien of 
 the pledge. Norton v. Baxter, 41 Minn. 146; Loughborough v. McNevin, 74 Cal. 250; 
 Haskins v. Kelly, 1 Eob. 160; Cass v. Higenbotam, 100 N. T. 248; Mitchell v. Roberts, 
 17 Fed. Rep. 776; Tiffany v. St. John, 65 N. Y. 314, 318. 
 
 * Coggs V. Bernard, 2 Ld. Rayni. 909; Mitchell v. WilHams, 4 Hill, 13; Tiffany v. 
 St. John, 65 N. T. 318. 
 
 ^Holbrook v. Wight, 24 Wend. 169; Winter v. Coit, 7 N. T. 288; Covill v. Hill, 
 6N. Y. 374; Wood v. Orser, 25 N. Y. 348; Henry v. Marvin, 3 E. D. Smith, 71; Cass 
 T. Higenbotam, 100 N. Y. 248, 252. 
 
 « Ante, §§ 38-42, 60, 61, 86, 97, 101-104, 156, 257, 267; Luckey v. Gannon, 37 How. 
 Pr. 134; supra. Wood v. Orser. 
 
 ' Holbrook v. Wight, supra. See Cook v. Holt, 48 N. Y. 275. 
 
238 Law op Bailments. 
 
 § 313. After the debt secured by a chattel mortgage becomes due, 
 the legal title to the chattels vests in the mortgagee ; and after this the 
 mortgagor's only remedy is by a bill in equity to redeem ^^an action in 
 which he is entitled to have an account of the rents, profits, and income 
 derived from the property.^ The pledgor has the same remedy, where 
 he has a right to demand a retransfer of the security, stocks, and an 
 account of the dividends received thereon ; ^ or where the legal remedy 
 is insufficient to afford him an adequate protection, as where the pledge 
 consists of negotiable securities, and an injunction becomes necessary to 
 prevent a wrongful transfer of the paper ; * or where a discovery is 
 sought, or a specific performance is necessary, to protect the pledgor.' 
 A tender or payment of the debt must precede the action to redeem.' 
 The debt remaining unpaid in whole or in part, a receiver cannot be 
 appointed over a mortgagee in possession ; and where there is no allega- 
 tion showing his want of responsibility, equity will not restrain him 
 from selling the loroperty.' Tlie danger is too remote.** A threatened 
 abuse of legal power, the effect of which is sure to worii an immediate 
 injury, justifies the interposition of an equitable remedy. ** 
 
 § 314. A court of equity has no general jurisdiction over actions to 
 redeem personal property held in pledge, witliout some other circum- 
 stances rendering its interference necessary.^" The facts must show 
 that the complainant is entitled to an equitable remedy ; a discovery, 
 a specific transfer of property, an injunction, or that an account must 
 be taken." To sustain a bill for an account, there must be mutual 
 demands, or a series of transactions on one side and of payments on the 
 other.^'^ 
 
 The objection, that tlie plaintiff has a remedy at law, must be set up 
 
 I Willard's Eq., 457. ^ pj-att v. Stiles, 17 How. Pr. 211, 222; 17 IST. T. 80, 84. 
 "Hasbrouck v. Vandervoort, 4 Saudf. 74; Kemp v. Westbrook, 1 Ves. Sen. 278; 
 
 9 N. T. 153; Cowles v. WMtman, 10 Conn. 121; 29 Cal. 142. 
 
 " Brown v. Pamals, 14 Wis. 693. See Illinois v. Delafield, 8 Paige Cb. 527; S. C. 
 2 Hill, l.J9, 177. 
 
 ''Benedict v. Gilman, 4 Paige Cb. 58, 526; 5 id. 9. 
 
 " Craiy v. Smith, 2 N. Y. 60; 4 Sandf. 74. 
 
 'Bayaud v. Fellows, 28 Barb. 451; Patten v. Acces. Transit Co., 4 Abbott, 235; 
 Quinn v. Brittain, 3 Edw. Cb. E. 314; Quarrell v. Beclrford, 13 Ves. 377. 
 
 ' See Reubens v. Jael, 13 ^T. T. 488. 
 
 i> Ford V. Eansom, 39 How. Pr. 429; 8 Abbott Pr. (X. S.) 416: bere the mortgagee 
 was restrained from taking possession contrary to bis stipulation. See Parker t. Gar- 
 rison, 61 111. 250; Pattison v. Gilford, Law Eep. IS Eq. 259. 
 
 10 Glenn'.e v. Imri, 3 You. & Coll. 436; Hirst v. Pierce, 4 Price, 339; Jones v. Smith, 
 2 Ves. J. 372; Demenbray v. Metcalf, 1 Vern. 698. 
 
 II Durant v. Einstein, 5 Eobt. 423. 
 
 ^ Porter v. Spencer, 2 John. Ch. E. 169; Moses v. Lewis, 12 Price, 502; 13 Ves. 275. 
 
Pledges or Pawns. 239 
 
 in the answer ; it comes too late on the liearing of the cause.^ We ac- 
 cordingly find many cases disposed of in a court of equity for which the 
 law provides a sufficient remedy.^ And there are many cases in which 
 courts of law and equity have a concurrent jurisdiction.' Thus, the 
 assignee of a factor having a legal remedy may flle a bill for the settle- 
 ment of accounts between him and his principal.* 
 
 § 315. A general pledge given to a creditor to secure a running 
 account, or all demands that may become due to him from the debtor, 
 authorizes a suit in equity for an account.' And where the collaterals 
 have been transferred, the purchasers or assignees must be made parties 
 to the action ; otherwise the court cannot make a proper decree au- 
 thorizing a redemption.^ In some cases, as in a pledge of negotiable 
 paper or stocks with a power to sell, a transfer will convey the title 
 disencumbered, and thus defeat a specific redemption; leaving the 
 court to make a decree adjusting the equities between the parties, upon 
 principles applicable to the transaction and present situation of the 
 parties. 
 
 § 316. When the general owner sells the property held in pledge, 
 the purchaser necessarily takes it subject to the rights of the bailee ; 
 that is to say, he acquires the title to the property, including the 
 remedies given by law for its protection. As purchaser he is entitled 
 to redeem, on the same terms as the original owner : on a tender of 
 the amount due, the pledgee must deUver up the property to him ; 
 a refusal to do so on demand is a conversion.' The owner's right 
 
 1 Truscott V. King, 6 N". T. 147, 165; Le Koy v. Piatt, 4 Paige, 77; Town of Mentz 
 V. Cook, 108 N. T. 504; Grandin v. Le Roy, 2 Paige, 509; Cox v. James, 45 K. T. 557; 
 Green V. Milbank, 3 Abb. N. C. 138; Pam v. Vilmar, 54 How. 235; Bell v. Spotts, 
 8 Jones & Sp. 552; Crisfield v. Murdock, 127 N. T. 315; Brown v. Kom, 127 N. T. 
 224. 
 
 2 Hart V. Ten Eyck, 2 John. Ch. R. 100. See Mahoney v. Caperton, 15 Cal. 313; 
 and Hunsacker v. Sturgis, 29 Cal. 142, 267; and Donohoe v. Gamble, 88 Cal. 840; 
 Bradley v. Bosley, 1 Barb. Cb. 125. 
 
 3 Jlayne v. Griswold, 3 Sandf. 363; Foot v. Farrington, 41 N. T. 164. 
 « Wilson V. Mallett, 4 Sandf. 112; 7 Robt. 564. 
 
 5 Conyngbam's Appeal, 57 Penn. St. 474; Beatty v. Sylvester, 2 JS'ev. 228; Diller v. 
 Brubaker, 52 Penn. St. 498. 
 
 ^ Lewis V. Varnum, 12 Abbott, 305. 
 
 ' Franklin V. Xeate, 13 Mees. & Wels. 481; plaintiflf bougbt a chronometer under 
 a pledge for £15, and tendered the amount due and demanded the watch; held he 
 could recover in the action of trover. See also Hunt v. Hotton, 18 Pick. 216, and 
 Magee v. Toland, 8 Porter, 36. One vrho purchases from the general owner property 
 pledged for advances, with knowledge and notice of the lien of the pledgee, and who 
 receives the property from the latter with notice of his claim of a lien thereon for a 
 speciac amount, takes the property with the obligation to pay the lien. Carrington v. 
 Ward, 71 N. T. 360. 
 
240 Law of Bailments. 
 
 to sell the goods, pending the pledge, draws after it these rules of 
 law.^ 
 
 If the general owner become bankrupt, his assignee succeeds to his 
 title and rights ; '^ the bailee retaining his lien unaffected. The same 
 rule holds good where the bailee is summoned as a trustee of the general 
 owner,' or where an attachment is procured against him ; the process 
 takes effect subject to the rights of the bailee ; it enables the plaintiff 
 to reach the interest of the general owner, and nothing more.* The 
 ofloer cannot, unless authorized by statute, seize and sell the property.^ 
 A factor under advances is a pledgee entitled to hold the goods ; so that 
 an attachment binds only the surplus." 
 
 § 317. The pledgee's right to file a bill and have a judicial sale of 
 the pledge is settled ; ' and it has been enforced so as to enable the 
 creditor to regain the possession of the pledge, obtained from him 
 through a fraudulent device, and thus to secure a sale and the benefit of 
 his lien.^ Here the pledgee has a right to bring an action of trover for 
 the property ; a remedy which is less ef&cient under many circum- 
 stances.** At law the pledgee can only recover his lien by a recovery 
 of the specific property ; because we have no form of action at law, 
 under which a lienholder can regain his lien, as a thing distinct from 
 the property. Based on a right to detain the property, the lien is not 
 necessarily defeated by a loss of possession, where the creditor does 
 not voluntarily part with the goods, or intentionally surrender his 
 lien.i" 
 
 § 318. The remedy depends upon the circumstances and the nature 
 of the transaction. A renewal or change in the form of the debt secured 
 
 1 Hodges V. Hm-d, 4'7 111. 363. 
 
 2 Ealeigh v. Atkinson, 6 Me.es. & Wels. BTO. 
 ^ White M. Banlc v. W(^st, 4(5 Jle. 15. 
 
 « Giles T. Nathan, .", Taunt. 558; Curtis v. Norris, 8 Pick. 280; Bank of S. C. v. 
 Levy, 1 McMulIen, 430; Nolan v. Crook, 5 Humph. 312; Black v. Zacha, 3 How. TJ. S. 
 483; Cook v. Kelly, 9 Bosw. .358. 
 
 ^ Brownell v. Carnley, 3 Duer, 9. 
 
 6 Patterson v. Parry, 5 Bosw. 518; and see Taylor v. Turner, 87 111. 296. 
 
 T Demandray \. Metcalf, Prec. in Chan. 419; Kemp v. Westhrook, 1 Ves. Sen. 278; 
 Tucker v. Wilson, 1 P. Wms. R. 261; 2 Kent's Comm. 582; ante, § 297; Smith v. 
 Coale, 12 Phila. (Pa). 177. 
 
 8 Coleman V. Shelton, 2 McCord's Ch. 126. In this case a slave was delivered in 
 pledge to work out a deht; and the pledgor enticed away the slave. See Donohoe v. 
 Gamble, supra. 
 
 9 Hutton V. Amett, 51 111. 198; ante, § 269. See Bruley v. Rose, 57 Iowa, 651. 
 
 1° Allen V. Spencer, 1 Edm. R. 117; McCaffery v. Wooden, 62 Barb. 316; 5 Denio, 
 269; 1 Sandf. 248. It can only be created by a delivery of the possession. Muller v. 
 Pondir, 6 Lansing, 472. 
 
Pledges or Pawns. 241 
 
 does not affect the pledge. The recovery of a judgment for the amount 
 of the debt does not release the pledge ; nor does the taldng of a higher 
 security therefor.^ Indeed, it is quite common to give a judgment or a 
 bond and mortgage to secure either an existing debt or future advances ; 
 and the collateral stands good until the debt or the advances are paid.^ 
 The purpose for which the security is given may be shown by parol 
 testimony ; and necessarily the action taken or payments made under 
 the arrangement.' Thus the collateral is made to accomplish the intent 
 of the parties, with but Uttle embarrassment arising from artificial 
 rules. 
 
 A second security of the same degree, given for the same debt, does 
 not release the first ; * as where a second bond or second mortgage is 
 given for the same debt. A security of a higher nature like a bond 
 extinguislies one of a lower nature like a note, when both are given for 
 the same debt.^ A judgment recovered upon a judgment does not ex- 
 tinguish it ; both being of the same grade." But these rules relating to 
 the doctrine of merger do not apply where the higher security is taken 
 as additional or collateral security for the payment of the debt. ' The 
 rule that a security of a higher nature extinguishes inferior securities, 
 only applies to the state or condition of the debt itself, and means no 
 more than this : that when an account is settled by a note, or a note 
 changed to a bond, or a judgment taken upon either, the debt, as to its 
 original or inferior condition, is extinguished or swallowed up in the 
 higher security ; and that all the memorandums or securities by which 
 such inferior condition was evidenced lose their validity. It has never 
 been applied to the extinguishment of distinct collateral securities, 
 
 1 Dunham V. Dey, 15 Jolin. K. 555; Bank of Utica v. Finch, .3 Barb. Ch. -J'X,; Curtis 
 V. Leavitt, 15 N. Y. 14, 162; Day v. Lea], 14 John. 404; Brinkerhoff v. Lansing, 
 4 John. Ch. 65. 
 
 2 Tmscott V. King, 6 N. T. 147 ; Mead v. York, 6 N. Y. 449. When a creditor holds 
 a note and a bond and mortgage for the same debt made by the samp parties, his 
 remedy is upon the higher security. Miller v. Watson, 5 Cowen, 195 ; Tylee v. Yates, 
 3 Barb. 222 ; Lane v. Shears, 1 Wend. 433. 
 
 ' McKinster v. Bahcock, 26 N". Y. 378; 6 Duer, 208. 
 
 * Gregory V. Thomas, 20 Wend. 17; Walker v. Henry, 85 N. Y. 130; Hill v. Beebe, 
 13 N. Y. 556; Board of Education v. Fonda, 77 N. Y. .350; Jagger Iron Co. v. AValker, 
 76 K. Y. 521; Shuler v. Boutwell, 18 Hun, 171. 
 
 s Miller V. Watson, 5 Cowen, 195; Tylee v. Yates, 3 Barb. 222. 
 
 "Andrews V. Smith, 9 Wend. 53, 54. See Millard v. Whittaker, 5 Hill, 40S; Jackson 
 V. Shaffer, 11 John. K. 513, 516. 
 
 ' Day V. Leal, 14 John. 404; Youngs v. Stahelin, 34 N. Y. 258; Bank of Chenango 
 V. Hyde, 4 Cowen, 567, 575; Taggard v. Curtenius & Jones, 15 Wend. 155, 157; 
 Kelsey v. Western, 2 N. Y. 500, 510; Barts v. Peters, 9 Wheat. 556; Hill v. Beebe, 13 
 N. Y. 556. 
 
242 Law of Bailments. 
 
 whether superior or inferior in degree. These are to be canceled 1)}- 
 satisfaction of the debt, or voluntary surrender alone.^ 
 
 § 319. The creditor's failure to appropriate the collateral to the satis- 
 faction of the debt, or to preserve its validity and value, does not ope- 
 rate upon the debt itself." The neglect may be available as a defense 
 to an action on the debt, or made the basis of an action to recover the 
 damages sustained by a breach of the contract of pledge, or by the 
 breach of another contract under it made with a third party. To illus- 
 trate : a debtor delivers to his creditor an indorsed note made by a third 
 party as a collateral security for the payment of the debt, the creditor 
 deposits it with his bank for collection, and the bank neglects to charge 
 the indorsers thereon ; here the creditor as pledgee of the note has a 
 cause of action against the bank, and his recovery against the bank is 
 to be applied upon the debt secured. But if the debtor, before suit 
 against the bank, comes forward and pays his debt and takes up 
 the collateral note, he is entitled to recover his damages against the 
 bank.'' 
 
 The creditor holds all collaterals as a trustee, to be collected for the 
 benefit of the debtor ; and whenever he transfers them absolutely, with- 
 out authority, he takes them at their face, in satisfaction to that extent 
 of the principal debt.^ The debtor can ask nothing more, and he is not 
 obliged to accept anything less.^ 
 
 § 320. When a creditor receives a collateral note for collection, the 
 proceeds to be applied upon his demand, he assumes the duty of a col- 
 lecting agent ; and is liable for any failure in diligence, upon the same 
 principle as if the two contracts were entirely separate." He is bound 
 like an attorney to use reasonable diligence by suit, to collect on the 
 note ; he is bound by the terms of his contract, or by the necessary legal 
 effect of those terms.'' A suit must be brought and prosecuted with 
 
 1 Butler V. Miller, 1 Denio, 407; S. C. 5 Denio, 150; S. C. 1 N. T. 496. 
 
 ^ Taggard v. Curtenius <t Jones, supra. 
 
 8 JXcKinster v. Bank of Utica, 9 Wend. 46, 4S ; S. C. 11 Wend. iT) ; Whitney v. M. 
 Un. Ex. Co., 104 Mass. 1.'.2. 
 
 « Hawks V. Hinclicliffe, 17 Barb. 492, .502. 
 
 ^Townsend v. Borgy, 57 N. Y. 605. 
 
 8 Buckingham v. Payne, ,38 Barb. 81 ; Semple A- Birge Manuf. Co. v. Detwiler, 30 
 Kans. 386; Harper v. Second Bank, 12 Lea (Tenn.), Cu^i; Alexander v. Alexander, 64 
 Ind. 541; Briggs v. Parsons, 39 Mich. 400; Colquitt v. Stultz, 65 Ga. 305; McQueen's 
 Appeal, 104 Pa. St. 596; Hanna v. Holton, 78 Pa. St. 334; Wills v. Wills, 53 Vt. 1; 
 Wliitin V. Paul, 13 P. I. 40; Butterton v. Eoope, 3 Lea (Tenn.), 215; Lamberton 
 V. Winslow, 12 Minn. 232; Eumsey v. Laidley, 34 W. Va. 721. 
 
 ■^ Morris v. Wadsworth, 11 Wend. 104; S. C. 17 Wend. 112; Hoard v. Garner, 10 
 N. T. 261. 
 
Pledges oe Pawns. 248 
 
 diligence ; as it must to charge a guarantor of the collection.'- It is not 
 enough to place the demand in the hands of an attorney ; diligence 
 must be used in the effort to collect, according with the contract,^ and 
 fulfilling the duty assumed.^ 
 
 § 321. We have seen that a creditor is entitled to retain a pledge, 
 after his demand has been barred by the statute of limitations ; * on the 
 same ground that a mortgagee in possession cannot be dispossessed, 
 without satisfying the debt due to him.^ In its early form, the statute 
 did not in terms apply to suits in equity ; and the practice in courts of 
 equity was to apply the principle of the statute so as to defeat stale and 
 deserted claims ; in a court of equity the statute was adopted as a 
 rule of reason. In its recent form the statute applies to suits for relief 
 in equity, as well as to suits at law ; ^ and it is interpreted as a statute 
 of repose. An action to redeem against a mortgagee in possession is a 
 suit in equity, and it is to be brought within the time limited for such 
 actions after the defendant enters into possession — claiming the title.' 
 But the statute does not commence running where the mortgagee enters 
 and continues in possession avowedly as mortgagee, for the reason that 
 it is a continuing right of the owner to discharge the mortgage and thus 
 regain the possession of the land. Does not the same rule, based on 
 the same reason, apply in favor of the pledgor so long as the pledgee 
 retains the pledge and does nothing inconsistent with the contract? 
 The pledgee here cannot gain the shadow of a right by prescription, 
 because there is here no foundation on which to base the right ; and 
 the statute does not commence to run until a present right of action to 
 redeem accrues.^ Can it be held that the action to redeem accrues 
 
 1 Craig V. Parkis, 40 N. Y. 181. 
 
 2 Hoard v. Garner, supra; Eddy v. Stanton, 21 Wend. 255; Plymouth County Bank 
 V. Gilmau, 6 Dak. 304. If the payee of a note deposits it with a bank as collateral, at 
 the same time guaranteeing it, he and not the bank must bear the loss if the maker 
 becomes insolvent, although the bank has held the note for eighteen months after it 
 matured, in the absence of a request by the payee that it be collected. City Savings 
 Bank v. Hopson, 53 Conn. 453. 
 
 3 Miller v. Proctor, 20 Ohio St. 442. 
 
 * Jones V. Merchants' Bank of Albany, 6 Eobt. 162. See dissenting opinion, 4 Kobt. 
 221. See ante, § 249. 
 
 5 Phyfe v. Riley, 15 Wend. 248; Chase v. Peck, 21 N. T. 581; Calkins v. Calkins, 
 3 Barb. 305. 
 
 « Foot V. Farrington, 41 N. T. 164. 
 
 'Miner v. Beekman, 50 N. T. 33*7; Knowlton v. Walker, 18 Wis. 264; 14 id. 286. 
 See Code of Civil Procedure, § 379; Shriver v. Shriver, 86 N. T. 575. 
 
 8 Jones T. Thurmoud's heirs, 5 Texas, 318, 321, holds that the statute does not 
 commence to run until the pledgee does some act which shows a determination to 
 dissolve the relation of pledgor and pledgee. Gilmer v. Morris, 35 Fed. Eep. 682, 
 
244 Law of ISailmekts. 
 
 before the bailor demands a return of the property and tenders a satis- 
 faction of the debt? It seems not ; the action of trover may be main- 
 tained within six years after a refusal to restore on demand.^ 
 
 § 322. After a Inng- lapse of time it often becomes inequitable to 
 allow the debtor to redeem ; it is so where the pledge does not exceed 
 in value the debt when it becomes due, and both parties tacitly assume 
 for many years that the pledge shall be taken in payment of the debt.^ 
 Time works changes in the relations of the parties ; and the law recog- 
 nizes this fact of universal experience in adjusting the rights of prop- 
 erty. It limits the period of litigation. It prescribes the time within 
 which all demands, including those which are most just and equitaljle, 
 must be prosecuted.^ It leaves but one question open for investiga- 
 tion : when did the cause of action accrue ? That being ascertained, 
 the action must be brought within the years given for that purpose.* 
 In analogy with other similar trusts, the statute does not begin to run, 
 as a general rule, until there has been an open denial or repudiation of 
 the trust, or some notice of an adverse claim.^ 
 
 holds that until the pledgee repudiates the title of the pledgor the holding is not 
 adverse so as to set the statute of limitations in motion in the pledgee's favor. This 
 case was reversed in the Supreme Court of the United States on the ground of want 
 of jurisdiction in the court below, and on that ground only. Morris v. G-ilmer, 129 
 TJ. S. 31.5. See Gilmer v. Morris, 43 Fed. Eep. 4r,(i. 
 
 1 Roberts v. Berdell, 61 Barb. 37; S. C. 15 Abb. N". S. 177; 52 N. T. 644; Purdy 
 V. Sistare, 2 Hun, 120. See Tode of Civil Procedure, § 410; Fry v. Clow, 50 Hun, 574; 
 Humphrey v. Clearfield Bank, 113 Pa. St. 417. 
 
 2 Waterman v. Brown, 31 Penn. St. 161. An action to redeem cannot be sustained 
 after the lapse of many years. In this case a loan of -sCi/.l.a was made on a pledge of 
 bank stock as a collateral security, the stock being transferred to the lender, with 
 authority to sell It and pay the note. For eleven years after the note fell due nothing 
 was done by the debtor. The notes outlawed in six years, and the stock was then 
 actually worth less than the amount due on the notes. Five years afterward, the 
 stocks having risen in value, a suit was brought by the debtor to redeem; and the 
 court refused a decree in his favor and intimated an opinion that his suit was barred 
 by a delay of six years after the debt fell due. Henry v. Tupper, 3 Williams, 29 Vt. 
 358. A court of equity may grant relief from a forfeiture; for example, from the 
 forfeiture of an estate conditioned for the maintenance and siipport of the grantee, 
 where the forfeiture was accidental and unintentional, and not attended with irrepar- 
 able injury. But it rests in the soimd discretion of the com-t when relief shall be 
 granted in this class of cases. 
 
 8 Bundle v. Allison, .34 N. T. 180. 
 
 * Roberts v. Sykes, 30 Barb. 173, holds that an action to redeem stocks pledged by 
 a transfer, on a loan of money, must be brought within ten years after the money 
 becomes due. Stitheelaud, Justice. See Calkins v. Calkins, 3 Barb. 305; S. C. 
 20 N. T. 147. 
 
 E Purdy V. Sistare, 2 Hun, 126; Angell on Lim. §§ 173, 178, 179, 180; ante, §§ 251- 
 253; and see Gilmer v. Morris, 35 Fed. Rep. 682; 43 Fed. Eep. 456; Marr v. Kinjbel, 
 
Pledges or Pawns. 245 
 
 § 323. A debt is not protected from the statute of limitations because 
 accompanied by a pledge as a collateral security ; it is not on that 
 account the less subject to the mischief against which the statute was 
 intended to guard.^ If the debt be contracted and the pledge given for 
 its payment at the same time, and the debt be suffered to pass under 
 the bar of the statute, the creditor ought not to be deprived of the 
 security. Though unable to collect his debt by suit, it does not seem to 
 be just or reasonable to deprive him of the pledge received on the debt, 
 with an implied power to sell it and apply the proceeds ; ^ more espe- 
 cially, since the statute operates upon the remedy and not upon the debt 
 itself.5 
 
 § 324. A payment made upon a debt renews it. It is an acknowl- 
 edgment by the debtor of his liabiUty to pay the whole demand ; and 
 from this acknowledgment the law implies a new promise by the debtor 
 to pay the residue. The law does not imply such a promise from a 
 part payment by the debtor's assignee ; or from a payment made to the 
 creditor on a collateral security held by him to secure the payment of 
 the original debt.* 
 
 When a pledgee, with a view to foreclose the pledgor's interest in the 
 
 4 Mackey, 577; Chouteau v. Allen, 70 Mo. 290. The case of Roberts v. Sykes, above 
 cited, was decided at special term and is not in harmony with the currrent of authority. 
 It fails to distinguish between the right of the pledgor to pay the debt secured and 
 receive the property pledged, and the right of action to redeem flowing from the tender 
 of payment and a refusal by the pledgee to restore the property. The pledgor has the 
 right under his contract to receive back his property on payment of the debt. The 
 pledgee has the right under the same contract to retain the property until payment. 
 Neither party has a right of action against the other until there has been a breach or 
 repudiation of the contract. The pledgee cannot bring his action to forclose or pro- 
 ceed to sell the property pledged without calling upon the pledgor to redeem; and the 
 pledgor cannot bring his action to redeem without tendering payment of the debt. 
 The pledgee's right of action to foreclose accrues upon the refusal of the pledgor to 
 redeem after demand; the pledgor's right of action to redeem accrues upon the refusal 
 of the pledgee to accept payment and restore the property pledged, or upon the doing 
 of some act by the pledgee equivalent to a repudiation of the contract and a denial of 
 the pledgor's rights under it. 
 
 1 Slaymaker v. Wilson, 1 Penn. E. 216, per Chief- Justice Gibson; and see Clark 
 v. Bull, 2 Root E. 329. 
 
 2 Wash V. Whitcomb, 2 Esp. E. 565; Bromley v. Holland, 7 Ves. 28; Hunt v. Eous- 
 manier, 8 Wheat. E. 174. 
 
 ' The authority to sell the pledge is not affected by the statute. See Pratt v. Hug- 
 gins, 29 Barb. 277; Thayer v. Mann, 19 Pick. 535; Bush v. Cooper, 4 Cush. 599; 
 Baldwin v. Norton, 2 Conn. 163; Hulbert v. Clark, 128 N. T. 295; Coldcleugh v. John- 
 son, 34 Ark. 312; Hancock v. Franklin Ins. Co., 114 Mass. 155; Shaw v. Silloway, 
 145 Mass. 503; Ballou v. Taylor, 14 E. I. 277. 
 
 * Picket V. Leonard, 34 N. T. 175; Harper v. Fairley, 53 N. T. 442; 54 N". T. 114 
 
246 Law of Bailments. 
 
 pledge, proceeds to sell the same and becomes himself the purchaser, 
 the transaction works no change in the rights of the parties. And so 
 where a debtor, being pressed to pay his debt, assigns to his creditor a 
 bond and mortgage made by a third party as a collateral security ; and 
 the creditor afterward forecloses the mortgage without making the debt- 
 or a party to the suit or proceeding, and himself buys in the property ; 
 the transaction does not cut off the debtor's right to redeem. The 
 assignment of a subsisting mortgage as a collateral to secure a debt 
 operates like a mortgage or a pledge ; ^ and the debtor cannot be de- 
 prived of his interest in the property covered by the mortgage, or in 
 the proceeds of it, without his consent ; ^ or without being heard in the 
 action ; ^ the purpose of the assignment must be carried into effect, and 
 the avails of the security must be duly accounted for.^ 
 
 1 Slee V. Manhattan Co., 1 Paige Ch. 48, 80; Carr v. Carr, 52 N. T. 2.^1. 
 
 2 Hoyt V. Martense, 16 K. T. 231 ; ante, § 292. 
 
 3 Bloomer v. Sturges, 58 N. Y. 168. 
 
 * Stoddard v. Whiting, 46 N. Y. 627. 
 
Bailments for Hieb. 247 
 
 CHAPTER VI. 
 
 BAILMENTS FOR HIRE. 
 
 § 325. Bailments for hire embrace a great variety of contracts con- 
 nected with and growing out of the delivery of personal property, on an 
 agreement mutually beneficial to the contracting parties. Letting for 
 hire, or, as the phrase is commonly used, lettiug to hire, is a bailment 
 where compensa:tion is given for the use of a thing, or for labor and 
 services about it or upon it. The contract embraces the hire of stor- 
 age, the hire of things, the hire of labor and services, and the hire of 
 carriage or transportation.^ Warehousemen receive goods on deposit 
 for a compensation paid for their custody or storage. One who hires a 
 thing for use acquires a right to the possession and use for the term 
 agreed upon ; and the letter to hire gains an absolute property in the 
 hire or compensation. Where cloth is delivered to a tailor to be made 
 up into a suit of clothes, or a gem to a jeweler to be set or engraved, or 
 timber to a mechanic to be converted into some useful implement ; the 
 tailor, jeweler and mechanic are bailees for labor and services, to be be- 
 stowed on the things entrusted to them, for a compensation.^ The hire 
 of carriage is a contract under which the carrier, by land or water, en- 
 gages for the transportation and delivery of goods and merchandise — a 
 bailment of great importance and daily use, and therefore to be treated 
 by itself. 
 
 § 326. Our law of bailment has, to a considerable degree, grown out 
 of the civil code ; and many of the principles now established in the 
 common law have their root and foundation in the laws of Rome ; but 
 with us, as in earlier times, the vital element of every law is that natu- 
 ral equity which inspires and gives to it an authority over the human 
 mind. We do not accept it as rendering a compliment to an early age 
 or to the masterly genius of a great people ; it is its own authority, wit- 
 nessed by the consent of people widely separated from each other in 
 lineage and language, but loyal to the same unchanging law of justice. 
 
 1 2 Kent's Comm. 586; Cowen's Trea. 66; Jones on Bailm. 85, 86, 90, 97. 
 '' Pierce v. Schenck, 3 Hill, 29; Gregory v. Stryker, 2 Denio, 628. 
 
248 Law of Bailments. 
 
 Without being of any practical importance, it is gratifying to be able 
 to trace a principle of law to its source ; to find, for example(that the 
 rule which requires of one who hires a chattel for use the same degree 
 of diligence that all prudent men, that is, the generality of mankind, 
 use in keeping their own goods, is older than any existing legislative 
 powerJ For some reason, we place entire confidence in a law that has 
 the sanction of the concurrent wisdom of nations in all ages ; and which, 
 like a proverb freighted with a rich and just thought, passes from mind 
 to mind with an inherent vitality that makes it a part of the currency 
 of the world. We perceive in it a universal law ; that kind of univer- 
 sality which is implied in the pregnant maxim, that the voice of the 
 people is the voice of God. 
 
 § 327. Where one person deposits or leaves his goods with another, 
 and pays a consideration for the custody of them, the contract is mutu- 
 ally beneficial to the parties, and the bailee must keep the goods with 
 ordinary care.'^ He is required to exercise a degree of diligence greater 
 than that which is demanded of the depositary without reward ; and he 
 is excused for a degree less than that which is exacted of the borrower. 
 The fact that he receives the goods within the line of his business for 
 hire binds him to a diligence increased beyond that of a mere deposit- 
 ary ; and the fact that he renders a service to the owner of the goods, 
 in keeping and guarding them, brings him under a less stringent obliga- 
 tion than that which rests upon one who borrows the use of a chattel, 
 without rendering any sort of recompense for it.^ 
 
 When it is said that the bailee for hire is responsible for the exercise 
 of ordinary diligence, the meaning is, that he is bound to take that care 
 of the goods entrusted to him which everj' person of common prudence, 
 and capable of governing a family, takes of his own concerns : in other 
 words, he is bound for that measure of diligence which prudent men of 
 business commonly take of their own affairs.'' The rule has reference to 
 the accustomed diligence of business men ; and the word ordinari/ is 
 used to denote that which is customary among prudent men engaged in 
 the busmess. The rule therefore prescribes the diligence of experts as 
 the standard of attention and watchfulness ; using the term experts as 
 
 1 Stewart v. Stone, 127 N. Y. .500. 
 
 2 Spooner v. Mattoon, 40 Vt. 300; Smith v. First National Banli, 99 Mass. 500; 
 Lancaster Bank v. Smith, 62 Penn. St. 47; Schmidt v. Blood, 9 Wend. 20S. 
 
 8 Doennan v. Jenlcins, 2 Adolph. & Ellis, 256; New Tork Central K. v. Lockwood, 
 17 Wallace, 357; Goodale v. Worcester Ag. Soc, 102 Mass. 401; Gray v. Harris, 107 
 Mass. 492; Gibbs v. Coykendall, 39 Hun, 140. There are many shades of care, from 
 the merest glance of attention to the most vigilant anxiety and solicitude; and the 
 law endeavors to fix a rule, between the two extremes, just in its application, and 
 graduated so as to meet the needs and circumstances of business. 
 
B/VTLMENTS FOU HiKE. 249 
 
 descriptive of persons having actual knowledge of the business, derived 
 from experience.^ 
 
 The application of the common law rule, requiring ordinary care and 
 diligence, depends so much upon circumstances that nearly every case 
 gives occasion for some new illustration of the rule. In its affirmative 
 form, the rule keeps its place with the strength of the reason on which 
 it rests ; while in its negative form, involving the comprehensive subject 
 of negligence, it is daily receiving specific applications and branching 
 out into a multitude of rules, defining what shall be considered neglect 
 or omission of duty under given circumstances.'' 
 
 § 328. Hire of Custody. 
 
 A delivery of property, to be stored or kept for hire, creates a contract 
 of bailment and obliges the bailee to the use of ordinary care ; or that 
 degree of care called for by the circumstances. The contract is to be 
 fulfilled according to its terms ; ' and the custody of the property must 
 be transferred to the bailee in order to charge him with its safe keeping. 
 A party receiving horses to be fed and taken care of, as in a livery- 
 stable, must observe his instructions and take reasonable care of them ; 
 and in the performance of his engagement he is liable for the acts and 
 omissions of his agents and servants. He is not liable for the omissions 
 or negligence of a servant, sent by the owner to feed and take care of 
 them.^ His duties are such as grow out of the special contract ; * and he 
 is liable as a bailee for horses received to stable and feed in that capacity^ 
 
 * In certain lines of business the use of tliis term becomes natural, and will be found 
 convenient ; in others it fails to serve any important purpose. As generally used in 
 the profession, the term expert means a witness qualified by his vocation, or special 
 education in some business or science, to give an opinion ; and the sense of the term 
 may be limited, so as to describe a person with reference to his experience or special 
 knowledge. De Witt v. Early, 17 N. T. 340; Clark v. Baird, 9 N. T. 183; Eobertson 
 V. Knapp, 85 N". T. 91. See Wharton on Negligence, Chap. 2, and § 500. 
 
 2 The recent works on the subject of negligence, in England and in this country, 
 indicate the growing importance of the theme, and the steady expansion of the law in 
 this direction. Would it not be a better plan to discuss the law on the theory of affirm- 
 ative obligation ? 
 
 3 Collins V. Bennett, 46 N". T. 490. 
 
 < Stone V. The Western Tr. Co., 38 N. Y. 240; Berry v. Morix, 16 La. Ann. 248. 
 If a stable-keeper, through his watchman, permits drunken men with pipes and matches 
 to make a lodging-house of the hay-loft, and the stable is burned and a horse he is 
 boarding is lost, he may be held liable for the loss. Eaton v. Lancaster, 79 Me. 477. 
 But the stable-keeper is not an insurer of animals left with him. To render him liable 
 for a loss or injury to such animals it must appear that he is chargeable with negli- 
 gence resulting in the loss or injury. Dennis v. Huyck, 48 Mich. 620. 
 
 6 Williams v. Jones, 3 Hurl. & Colt, 256, 602. 
 
 * Swann v. Brown, Jones (X. C.) L. 150. 
 
250 Law of 13ail.ments. 
 
 —liable to the owner on whose account he received the prop- 
 erty.^ 
 
 § 329. One who takes horses or cattle to pasture for a compensatiou 
 holds them as a bailee, in very nearly the same capacity as the keeper of 
 a livery-stable holds the horses left him to be kept for hire. He is a 
 bailee, bound for the exercise of ordinary care under the circumstances.^ 
 He holds under an implied contract to return the cattle to the owner on 
 demand ; and where he fails to return them, the burden of proof is on 
 him to excuse his failure ; and this he may do by showing that he has 
 used the diligence required by his contract." As bailee he has a special 
 or qualified property in the chattels, together with the possession ; he 
 is responsible for them; he may therefore vindicate his possessory 
 interest by an action against any stranger or third person, and lie 
 may recover in his action the full value of the property.* The owner 
 may also bring an action for the recovery of the property, but not both 
 of them ; '' in order to recover, the plaintiff must show a present right of 
 possession in the chattels." 
 
 § 330. Receiving property to keep for hire, the bailee impliedly en- 
 gages to preserve it with due care and reasonable skill; and this 
 engagement obliges him, in an unforeseen emergency, to act with dis- 
 cretion and good sense in his treatment of the property. If the cattle 
 or horses fall sick, it will become his duty to employ the usual meLiii , 
 for their safety ; by calling in a farrier.' And as the original contract 
 
 1 Randall v. Doane, 9 Gray (Jlass.), 408. The owner for whose account the horse 
 was received is liable for the keep. 
 
 2 Umlauf V. Bassett, 38 111. 96; Hally y. Jlarkel, 44 111. 225; McCarthy v. Wolfe, 40 
 Mo. 520; Eastman v. Patterson, OS Vt. 140; Smith t. Cook, L. E. Q. B. D. 79, where 
 a horse was gored by a bull. He is bound to furnish a pasture secure against the 
 ordinary accidents incident to the cattle to be pastured. The field must be properly 
 fenced and be free from dangerous places and obstacles. A failure in these respects 
 will render him liable for damages occasioned thereby. But he is not an insurer of 
 the property, and unless he is guilty of negligence he is not liable for injuries that may 
 be suffered from other causes, over which he has no control. He is bound to use 
 ordinary care ; that care which an ordinary prudent person would exercise over his own 
 property of like character. Gibbs v. Coykendall, 39 Hun, 140; and see Waldo v. 
 Beckwith, 1 New Mexico, 91. 
 
 2 Goodfellow V. Meegan, 32 Mo. 280. See Key v. Tonney, 24 Mo. GOO. 
 
 <Kissam v. Roberts, 6 Bosw. 1.54; Alt v. Weidenberg, (j Bosw. 176; Hendricks v. 
 Decker, 35 Barb. 298; Duncan v. Spear, 11 Wend. 54; 56 Barb. 661; Root v. Wilson, 1 
 Barn. & Aid. 59; G East, 510. 
 
 = Green v. Clarke, 12 N. T. 343. See Spear v. Blackman, Wend. 167. 
 
 * Bush V. Lyon, 9 Cowen, 52; 25 N. Y. :'AS. 
 
 'Dean V. Keete, 3 Campb. R. 4; Redding v. Hall, 1 Bibb. R. 536; Harrington r. 
 Snyder, 3 Barb. 380; and see Edwards v. Carr, 13 Gray, 234. He must see that 
 
Bailments foe Hike. 251 
 
 did not provide for this unexpected expense, the owner is liable 
 for it.i 
 
 § 331. The baUee receiving cattle or horses to stable or pasture for 
 
 proper treatment is furnished or immediately notify the owner. Hexamer v. Southal, 
 40 N. J. L. 682. 
 
 1 See the following opinion : 
 
 SUPREME COURT. 
 
 Philip Haetbb ii. Joshua I. Blahchabd. 
 
 Fourth Depaetment. Present, Mutxen, P. J., Taxcott and E. D. Smith, 
 
 Justices. 
 By the Court. — E. DAifwiN Smith, J. 
 
 This action is brought to recover for the keeping and care bestowed by the plaintiff 
 upon the defendant's horse. From the report of the referee and the evidence advanced 
 before him, it appears that the defendant, being a resident of Saratoga and the owner 
 of said horse, in the fall of 1870 entrusted the same to one William P. Tanner, resid- 
 ing at Frankfort, in Herkimer County, to be kept at pasture without any cliarge to be 
 made therefor. That said Tanner kept said horse on his farm, and oceasionally rode 
 him, and took him to exhibit him at the Herkimer County Agricultural Fair, in Novem- 
 ber of that year, on which occasion he took him to the village of Herkimer and placed 
 him in the hotel barn of one Tower, where he remained during the day and was left 
 in the evening, tied with a halter, in a stall in said barn. 
 
 That on the next morning the said horse was found in the stall where he had been 
 left the previous evening with one of his fore legs broken. That thereupon the plaint- 
 iff was sent for by said Tanner and employed by him to take care of said horse and 
 attempt to cure him ; and it was arranged between the plaintiff and said Tanner that 
 the said horse sliould be removed to the plaintiff's bam, and that he should take charge 
 of him at that place, and he did so. This action was brought for such service by plaint- 
 iff, which the referee finds was reasonably worth $1 per week ; for which sum, with 
 some deductions for the use of said horse by the plaintiff, judgment was directed by 
 said referee. 
 
 From these facts it appears that the said Tanner was the naked bailee of said horse, 
 without reward or consideration. As said bailee he was bound to exercise ordinary 
 care, and was responsible only for gross negligence. (Story on Bailments, §§ 61, 62, 
 65, and 66.) When the horse broke his leg, the owner, the defendant, being at a dis- 
 tance, tlie said Tanner was doubtless bound, in the exercise of ordinary care, to pro- 
 vide for his keeping, care and cure, as he would if the horse had been his own, and 
 would have been guilty of gross neglect if he had omitted to make such provision. 
 
 His contract with the plaintiff was a proper and reasonable one under the circum- 
 stances. This is not questioned. 
 
 The plaintiff, as I gather from the evidence, was a farrier, and was a fit and proper 
 person and had proper accommodation for the charge of said horse. As a bailee in 
 possession of said horse, the said Tanner had an implied authority to contract in 
 behalf of the defendant for such care and keeping of said horse. He could no longer 
 be pastured, and an exigency had arisen to preserve his life and restore if possible his 
 broken leg, which made necessary such an arrangement as the said Tanner made with 
 plaintiff, and I have no doubt he had full authority to bind the defendant by the con- 
 tract then made \mtil at least the defendant could be informed of the accident to his 
 horse, and could have time and opportunity to made other provision for his custody, 
 care and keeping. The defendant, it appears, was soon apprised of the accident to 
 
252 Law of Bailments. 
 
 hire does not under the common law acquire any lien upon them for 
 their keeping.^ There must be a special contract to create such a lien ; 
 and it is held that a lien by an agreement of the parties will not deprive 
 the owner of his right to bring an action of trespass against a third party 
 interfering with the property.- The common law gives some bailees a 
 lien on grounds of public convenience, and for the benefit of trade ; a 
 lien to those who are obliged to accept the custody of goods and chat- 
 tels, and to those who are engaged in some particular branch of trade 
 or commerce, and to those who by their skill and labor impart to the 
 goods some new or additional value.' The manner in which cattle are 
 received to pasture, and in which horses are kept or boarded in a livery- 
 stable for the owner, often precludes that kind of possession which is 
 essential to maintain a lien.'' 
 
 A distinction is taken between the mere keeper and a trainer of horses, 
 on the ground that the latter improves the chattels by the application 
 
 the horse, and that the same was iu the possession, of the plaintiff, for care and keep- 
 ing, and did not disaffirm sucli contract or make other proposition for tlie charge and 
 custody of said horse. It springs from tlie very nature of bailor and bailee, that the 
 latter necessarily has authority to contract for and bind the bailor in such casps for 
 the preservation and care of the property in his possession, and particularly with live 
 animals injured, as in this case; as much so as the master of a vessel has power to 
 bind the owner for repairs arising from injury or casualty at sea. Contracts so made 
 are clearly binding upon the principal or bailee. (Story on Bailments, §§ 198, 199; 
 and 1 Pothier, 167.) And this is so, even though the bailee may also be liable for 
 such care upon a particular contract. 
 
 It seems to me quite clear that the defendant was primarily liable for the care and 
 keeping of the horse upon the facts found by the referee upon the original contract, 
 and that he should be held liable as upon an affirmation of Tanner's contract, when 
 he learned of it and did not disapprove it by notice to the plaintiff, directly and dis- 
 tinctly reclaim his horse, or make other provision for its care. And that the plaintiff's 
 rights in this connection are not aifected by the relation between Tanner and the 
 defendant, nor by the consideration whether Tanner was guilty of such negligence in 
 the use or abuse of the horse as to be responsible to the defendant for the injury sus- 
 tained by him. The plaintiff had nothing to do with that question. 
 
 The decision of the referee upon the whole issue I think was right, and' the judg- 
 ment should be affirmed. 
 
 See Notara v. Henderson, L. R. 7 Q. B. 225. 
 
 ' Grinnell v. Cook, .3 Hill, 48.5, 491; Bissell -s. Pearce, 28 >f. Y. 252, 2.55 ; Goodrich 
 V. Willard, 7 Gray, 183; Fox v. McGregor, 11 Barb. 41. 
 
 2 Neff V. Thompson, 8 Barb. 21:!. 
 
 ^ Morgan v. Congdon, 4 X. T. 552. 
 
 * When horses are kept at livery, the owner takes and uses them at pleasure, and 
 the bailee only has a lien so long as he retains the uninterrupted possession. Per 
 Bkonson-, .J., in Grinnell v. Cook, r, Ilill, 492. See also in regard to milch cows, where 
 the owner has occasional possession, .Tackson \. Cummins, 5 Mce*. & Wels. 342; 
 Fox V. McGregor, 11 Barb. 41. 
 
Bailments foe, Hieb. 253 
 
 of Ms labor anij skill, and should have a lien based on that service.^ 
 And it is agreed that a farrier has a lien upon horses for his services in 
 their keeping and treatment ; ^ and that a blacksmith has a lien for shoe- 
 ing them.* 
 
 Under the statute law of this State, livery-stable keepers and other 
 persons keeping horses at livery or at pasture, or boarding the same for 
 hire, under an agreement with the owner, may, on due notice of their 
 charges and intention, detain the property until their reasonable charges 
 are paid. And they may enforce their lien in any court having juris- 
 diction of the amount ; by a suit ascertaining the amount due, and 
 obtaining a decree of sale and foreclosure.* 
 
 § 332. Waeehotjsemen. 
 
 Bailees of this class carry on a business of a public nature ; they re- 
 ceive goods generally, that is, from all persons indifferently, for storage.* 
 They invite business, and impliedly license the public to enter upon 
 their premises ; the business is also of a private nature, and the license 
 may be revoked or qualified." BaUees receiving goods in store, but not 
 engaged in the business, are not clothed with all the rights which the 
 law confers upon a warehouseman ; ' and their business is not covered 
 by the statutes relating to warehouse receipts.* 
 
 The State has the right to regulate the conduct of its citizens towards 
 each other, and the mode of transacting business affecting public 
 interests. It has the right to make regulations affecting the use and 
 management and charges of elevators and warehouses and railroads ; 
 and these regulations are valid, even where they incidentally affect 
 intei'-state commerce.' 
 
 1 Judson V. Etheridge, 1 Cromp. & Mees. 743; 3 Hill, 492; Bevan v. Waters, 3CaiT. 
 & P. 520; 12 J. Scott, N. S. 638; Forth v. Simpson, 13 Q. B. 380. 
 
 2 Lord V. Jones, 11 Shep. 439 ; Lane v. Cotton, 1 Ld. Raym. 654. 
 
 * Cummings v. Harris, 3 Vt. 245. The stabler has a lien upon a mare left at his 
 stable to be covered by a stallion. Scarfe v. Morgan, 4 Mees. & W. 270. As to the 
 statutory lien of the owner of a, stallion upon the mare and foal, see Laws of 1887, 
 Chap. 458, as amended by Laws of 1888, Chap. 457. 
 
 4 3 E. S. of N. T. 817, 6th ed. ; Laws of 1872, Chap. 498; Laws of 1880, Chap. 145; 
 Laws of 1892, Chap. 91. 
 
 6 Piatt V. Hibbard, 7 Cowen, 497, 500. 
 
 " Bogert V. Haight, 20 Barb. 251; Heaney v. Heaney, 2 Denio, 625; Beardsley v. 
 French, 7 Conn. 125. 
 
 ' Alt V. Weidenburg, 6 Bosw. 176; Eivara v. Ghio, 3 E. D. Smith, 264; 1 Hilton, 292. 
 
 8 Tenni v. McJfamee, 45 N. T. 614; Farmers & Mechanics' Nat. Bank v. Lang, 87 
 N. T. 269. See Edwards on Factors and Brokers, §§ 55, 58-65. 
 
 ' Munn T. Illinois, 4 Otto, 113. See Delaware, etc., E. E. Co. v. Central Stockyard, 
 etc., Co., 45 N. J. Eq. 50. 
 
254 Law of Bailments. 
 
 § 333. A warehouseman or depositary of goods for hire is bound for 
 the exercise of ordinary diligence, or that care which prudent persons 
 usually take of their own property .^ He is not like a common carrier, 
 liable as an insurer of the goods ; he is not liable for losses or injuries, 
 where he uses all the care and diligence in relation to the property 
 which prudent men exercise in relation to their own.^ Using due dili- 
 gence, he is not responsible for goods stolen or embezzled by his store- 
 keeper or servant, or for losses caused by fire, or by accident ; ^ and he 
 is liable for the goods where they are lost or stolen through his negli- 
 gence or want of due care.* 
 
 When a compensation is to be paid for house-room and not as a reward 
 for care and diligence, the bailee's liability is not exactly that of a ware, 
 houseman ; he is bound only for the use of reasonable diligence under 
 the circumstances ; " as where the owner of goods is permitted to place 
 them in a storeroom or outbuilding which is not specially protected or 
 guarded against thieves or accidental losses." The bailee's engagement 
 is such as the transaction fairly implies. 
 
 § 334. A warehouseman who is also a wharfinger or forwarding mer- 
 chant assumes the double responsibility of storing and forwarding the 
 goods entrusted to him ; and is responsible for ordinary care, skill and 
 diligence in the discharge of the duties incident to the business.' Re- 
 ceiving or coming into possession of the goods as a forwarder, at a given 
 point, he is like other agents bound by the directions of his principal ; 
 he must send them forward according to his instructions, or by the 
 usual conveyance, where his instructions fail or become impracticable.' 
 
 1 Arent v. Squire, 1 Daly, .347, 350, and cases there cited; Jones v. Morgan, 90 X. T. 
 4; Titswortli t. AVinnegar, 51 Barb. 148. 
 
 2 Knapp V. Curtis, 9 Wend. 60; Piatt v. Hibbard, 7 Cowen, 497. 
 
 8 Schmidt v. Blood, 9 Wend. 268; 3.3 Barb. 241; Garside v. Trent ISTav. Co., 4 T. E. 
 581; Cailiff V. Danvers, 1 Peake X. P. 114; Roth v. BufCalo & State Line E. E. Co., 
 34 X. Y. .548; Willett v. Eich, 142 Mass. :;.5(); Pace y. Xixon, 97 Ind. 97; Battenberg 
 v. Nixon, 97 Ind. 106; Claflin v. jNIcycr, 75 N. T. 260. The warehouseman may render 
 himself liable .for loss by fire by warranting his warehouse to be fireproof. Hlckey v. 
 Morrell, 102 N. Y. 454. 
 
 * Halyard V. Dechelman, 29 Miss. 8 .Jones, 459; Petty v. Overall, 42 Ala. 145; Lamb 
 V. Camden & Amboy R. E. Co., 46 X. Y. 271, 27s. 
 
 5 Finucane v. Small, 1 Esp. N". P. E. 315 ; Foote v. Storrs, 2 Barb. 320. See circum- 
 stances disclosed in Trust v. Pirsson, 1 Hilton, 292; 8 Taunt. 1',. 443; Jones t. Mor- 
 gan, 90 X. Y. 4. 
 
 I* SuTHEBLAiro, J., in Schmidt v. Blood, 9 Wend. 271. 
 
 ' Bush V. Miller, 13 Barb. 481: Gilbert v. Dole, 5 Ad. & Ellis, 540; White v. Hum. 
 phrey, 11 Q. B. 43. 
 
 8 Johnson v. N. Y. Central E. Co., 31 Barb. 190; S. C. 33 N. Y. 610; Ackley v. 
 Kellogg, 8 Cowen, 223. 
 
Bailments fok Hire. 255 
 
 His instructions being given in general terms, he must follow them in 
 good faith, interpreting them by the established usage and course of 
 business.^ He must not deviate from his instructions, for his own con- 
 venience ; and even in an emergency, he is not at liberty to go contrary 
 to his instructions, where he can safely wait for further orders.^ If the 
 contract specify the manner in which the goods are to be sent forward, 
 the carrier may safely go by its terms." 
 
 § 335. A forwarder, a person who -receives and forwards goods, tak- 
 ing upon himself all the expenses of the transportation, is not a common 
 carrier where he has no interest in the boats or conveyance by which 
 they are carried. By his contract he undertakes to forward the goods, 
 he does not undertake to carry and deUver them.* The contract deter- 
 mines the capacity in which he receives the property. If he receives it 
 under a contract, express or implied, to carry and deliver, he is held to 
 the liability of a carrier.^ His want of interest in the conveyance by 
 which the goods are to be transported is not the test of his liability : 
 our express companies conduct an extensive carrying business, without 
 having any proprietary interest in the cars, roads and lines employed 
 by them in the work of transportation. At the outset, they claimed to 
 act as forwarders, under a limited liability ; * on a mature consideration, 
 it is now agreed that they act in the capacity of common carriers.'' 
 And where a party undertakes the business of a carrier, and makes con- 
 tracts in the prosecution of it, he is not permitted to escape responsi- 
 bility ; the receivers or trustees of a railroad company acting as common 
 carriers are held liable in that capacity.^ 
 
 § 386. Where a party unites the business of a common carrier with 
 that of a warehouseman, and receives goods into his warehouse, to be 
 carried forward on the owner's subsequent order, the contract is one of 
 ordinary bailment ; and the bailee is liable for the goods as a warehouse- 
 man until they are ordered forward. But where the deposit in the 
 
 1 Van Santvoord v. St. John, 6 Hill, 157. The address on the goods was regarded as 
 a general direction. See Brown v. Dennison, 2 Wend. 593. 
 
 2 Johnson v. K. T. Central K. Co., 33 N. T. 610; Forsyth v. Walker, 9 Barr. 148. 
 « Hinckley v. N. T. C. &. H. E. E. Co., 56 N. Y. 429. 
 
 * Eoberts v. Turner, 12 John. K. 232. 
 
 5 Teall V. Sears, 9 Barb. 317; Simmons v. Law, 8 Bosw. 213; S. C, 3 Keyes, 217. 
 
 « Hirsfield v. Adams, 19 Barb. 577. 
 
 ' Place V. Union Ex. Co., 2 Hilton, 19; Buckland v. Adams Ex. Co., 97 Mass. 124; 
 Sweet Y. Barney, 23 N". T. 335; Belger v. Dinsmore, 51 N. T. 166; American Union 
 Express Co. v. Eobinson, 72 Pa. St. 274. 
 
 8 Rogers v. Wheeler, 43 K. Y. 598; Ballou v. Fammu, 9 Allen, 47; Sprague v. 
 Smith, 29 Vt. 421; Paige v. Smith, 99 Mass. 396; Blumenthalv. Brainard, 38 Vt. 408; 
 Morse v. Brainard, 41 Vt. 111. 
 
256 Law of Bailments. 
 
 warehouse is a mere accessary to the carria,G;e, or where the goods are 
 deposited for the purpose of bein.i,^ carried without further orders, the 
 responsibility of the bailee begins as that of a carrier from the time the 
 goods are received.-' 
 
 After tlie goods arrive at their place of destination, and the consignee 
 is notified of tlieir arrival and has had a reasonable time to receive them, 
 the carrier's character changes to that of a warehouseman ; and after 
 that he is only liable as a bailee for hire.^ The same rule applies where 
 the carrier makes due inquiry and fails to find the consignee, and there- 
 upon stores the property.^ He is not regarded as a gratuitous bailee, 
 though he receives nothing definitely charged for the storage, at the 
 commencement or at the close of the transaction. The incidental facil- 
 itates or conti-ibutes to the principal business; the storage of the goods 
 is not therefore a gratuitous service. It is a duty which springs out 
 of the principal contract, where the goods are left in the carrier's hands 
 temporarily for the o^vner's convenience; an event which occurs so 
 frequently that the parties are supposed to have contemplated the 
 contingency.* 
 
 § 337. When the consignee is unable or refuses to receive the goods 
 within a reasonable time, the carrier is at liberty to deposit them with 
 a responsible warehouseman.^ And where he does so under these cir- 
 cumstances, tlie storehouse-keeper becomes a bailee of the property and 
 
 1 Blossom y. Griffin, 1:3 X. Y. 51!!); L.adue v. Griffith, 2.5 S. Y. :;iJ4; Eead v. SpauW- 
 ing, SON. Y. (;:!0; 47Barb. 152; Barren v. Eldridge, lOOMass. 455; liogersv. Wheeler, 
 .52 N. Y. 202; ,S. C. 6 Lansing, 42(1; McDonald v. Western E. K. Co., 34 X. Y. 497; 
 Coyle V. Western 1!. E. Co., 47 Barb. 152. 
 
 - Fenner v. Buffalo & State L. E. Co., 44 X. Y. 505; Cook v. Erie Eailway Co., 58 
 Barb. 312; Draper v. Prest, etc., D. ct H. C. Co. 118 X. Y. 118; Weed v. Barney, 45 
 N. Y. 344; Tarbell v. Eoyal Exchange Shipping Co., 110 X^.Y. 170. 
 
 3Pelton V. Eensselaer & Saratoga E. Co., 54 N. Y. 214; Witbeck v. Holland, 45 
 X. Y. 13. 
 
 * Matter of "Webb and others, S Taunt. E. 443; White v. Humphrey, 11 Adolph. & 
 Ellis, 43; Burnell v. X". Y. Central E. Co., 45 X. Y. 184; X^. Plains Co. v. Boston & 
 Maine E. E. Co., 1 Gray, 263; Cay v. Cleveland A- T. R. E. Co., 29 Barb. 35. 
 
 i^Eedmond v. Liverpool, X^. Y. & Phlla. S. Co., 40 X. Y. 578; Ostrander v. Brown, 
 15 John. E. .39; Price v. Powell, 3 X^. Y. 322; Eichardson v. Goddard, 23 How. IT. S. 
 28; Western Tr. Co. v. Barber, 50 X. Y. 544; Tarbell v. Eoyal Exchange Shipping 
 Co., 110 X. Y. 170, IS2; Scheu v. Benedict, 116 X. Y. 510. The carrier is not at lib- 
 erty to abandon the goods or negligently expose them to injury even if the consignor 
 neglects to rroiMvc or to receipt for them after notice of their arrival. So long as he 
 has the custody of the goods, although there has been a constructive delivery which 
 exempts him from liability as a carrier, there supers'enes upon the original contract 
 of carriage by implication of law a duty as bailee or w-arehouseman to take ordinary 
 care of the property. Scheu v. Benedict, 116 N. Y. 510; Tarbell v. Royal Exchange 
 Shipping Co., 110 N. Y. 170. 
 
Bailments for Hieb. 257 
 
 liable for it to the OAvner.' The necessities of bustaess authorize the 
 transaction ; and it is not considered the carrier's legal duty to notify 
 the consignor of the action taken by him. The duty of diligence in this 
 particular rests properly with the owner of the goods.^ The carrier is 
 not at liberty to return or carry back the goods.' 
 
 The carrier is not obliged to store the goods at the place of destina- 
 tion with another party, in order to reduce his liability to that of a 
 warehouseman.* He makes a new contract by consenting to hold the 
 goods after having tendered a delivery of them, for the accommodation 
 of the consignee ; and his agreement to retain or to store them for a time 
 bmds him to the responsibility of a bailee for hire.^ By simply retain- 
 ing the goods at the owner's request, after notice of his readiness to de- 
 liver, the carrier by implication ceases to be liable as an insurer of the 
 goods ; ^ he can hardly be held liable as a carrier where by reason of the 
 consignee's neglect he is entitled by the contract implied by law to re- 
 cover demurrage for the wrongful detention of his vessel ; ' nor where 
 the consignee, being obliged to come and remove the goods, does not do 
 so within a reasonable time.^ 
 
 § 338. Custom often indicates the carrier's duty in delivering the 
 goods ; and the course of business may often be shown, in order to in- 
 terpret his contract. And both the custom and course of business may 
 be proved, with the circumstances to establish the carrier's liability as 
 a warehouseman, after the goods have been landed on the wharf.^ 
 Steamboats running regular trips must land their freight without de- 
 lay ; and where that is the custom, the delivery is completed by land- 
 
 1 Fisk V. Newton, 1 Denio, 45; Williams v. Holland, 22 How. Pr. 137. 
 
 2 Hudson V. Baxendale, 2 Hiirl. & Norm. STT; "Williams v. Holland, 22 How. Pr. 
 1.37; Eailey v. Porter, 32 Mo. 471. The duty of the consignee to receive and take the 
 goods is as imperative as the duty of the carrier to deliver. Tarbell v. Royal Exchange 
 Shipping Co., 110 N. T. 170, 180. 
 
 3 Crouch V. Great Western E. Co., 2 Hurl. & Nor. 491; S. C. 3 id. 183. 
 « Fenner v. Buffalo & State Line E. Co., 44 N. T. 505. 
 
 5 Hathorn v. Ely, 28 N. Y. 78. 
 
 8 Labar v. Taber, 35 Barb. 305; Thomas v. Boston & Providence E. E. Corp., 10 
 Met. 472; Tarbell v. Eoyal Exchange Shipping Co., 110 N. T. 170, 180. As to bag- 
 gage left at depot, see 45 N. Y. 184; 34 N. Y. 548; 49 N. Y. 546; 57 N. Y. 552. 
 
 ' Clendaniel v. Tuckerman, 17 Barb. 184; Cross v. Beard, 20 N. Y. 85. 
 
 8 Thomas v. Boston & Prov. E. Co., 10 Mete. 477; McCarty v. New York & Erie 
 E. R. Co., 30 Pa. St. 247; Illinois Central E. E. Co. v. Alexander, 20 111. 23; Eichards 
 v. Michigan, etc., E. E. Co., 20 111. 104; Porter v. Chicago & R. I. E. E. Co., 20 111. 
 407; Davis v. Michigan, etc., E. E. Co., 20 111. 412; Bansemer v. Toledo, etc., E. E. 
 Co., 25 Ind. 434; Eoth v. Buffalo & State Line E. R. Co., 34 N. Y. 548. 
 
 9 Gibson v. Culver, 17 Wend. 305, and cases there cited by Cowen, J. ; The J. Rus- 
 sell Manuf. Co. v. N. H. Steamboat Co., 50 N. Y. 121. 
 
 17 
 
258 Law of Bailjients. 
 
 iug the goods on the wharf, after the consignee has had a reasonable 
 tune to remove the goods. And it is agreed that the course of busi- 
 ness between the parties may control the mode of delivery.^ In the 
 absence of any such course of business or local usage, the delivery must 
 be reasonable in time and place ; the carrier must not leave the goods 
 unprotected on the wharf ; it is his duty to take care of them for the 
 owner. He should notify the owner of his readiness to deliver; and 
 ordinarily should place the goods within the owner's custody.^ On the 
 other hand, it is the duty of the owner or consignee to accept and re- 
 move the goods within a reasonable time ; and where there is no dispute 
 about the facts, it is for the court to determine what is reasonable 
 time, as a question of law.** The delivery is complete where bulky arti- 
 cles are landed from a vessel on a public wharf, and the consignee who 
 is the owner pays the freight and takes steps toward removing them: 
 the delivery is complete as soon as the owner has had a reasonable 
 opportunity to remove the goods. ^ 
 
 § .3.j9. IVhen goods are to be carried over successive lines, it is the 
 duty of each carrier to deliver to the next ; ^ and it is the policy of the 
 law to prevent the goods from falling into the hands of a warehouse- 
 man between the connecting lines. The intermediate carrier does not 
 become a warehouseman, by carrying the goods to the end of his route 
 and depositing them there in his own warehouse, or in a place of tem- 
 porary storage to facilitate a transfer of the goods." He holds as car- 
 rier until he delivers the goods ; certainly the law does not permit him, 
 at his own option, to store the goods and thereby escape his proper 
 responsibility.' A refusal by the next carrier to receive the goods will 
 
 1 Ely V. X. H. Steamboat Co., 51 Barb. 207; 6 Abbott Pr. y. S. 72; 50 N. T. 121; 
 Western Tr. Co. v. Hawley, 1 Daly, 327; 2 Hilton, 150; Farmers & Mechanics' Bank 
 V. Champlain Transp. Co., 2:) Vt. 186, 209; Noyes v. But. * Bur. Railway, 27 Vt. 110; 
 Kilroy v. Delaware & Hudson Canal Co., 121 N. T. 22. 
 
 " Eedmond v. Liverpool, N. y. & Phila. S. Co., 40 X. T. 578; Tarbell v. Royal Ex- 
 change Shipping Co., 110 N. Y. 170; Scheu v. Benedict, 116 N. T. 510. 
 
 3 Hedges V. Hudson River R. E. Co., 49 N. Y. 223; Eoth v. Buffalo & State Lme 
 E. E. Co., 34 y. T. .US; Dininny v. "N". Y. & X. H. R. R. Co., 49 N". T. 546; Tarbell 
 V. Royal Exchange Shipping Co., 110 N. Y. 170, ISO. 
 
 * Goodwin v. Baltimore & Ohio R. Co., 50 X. Y. 154. 
 
 15 Eawson v. Holland, 59 N. Y. 611; Jennings v. Grand T. Ry. Co., 127 X^. Y. 4,38; 
 Alabama, etc., E. R. Co. x. Thomas, 83 Ala. 343. The carrier may contract to trans- 
 port the goods to a point beyond his line. Jennings v. Grand Trunk Ey. Co., 127 
 N. Y. 438; Swift v. Pacific Mail Steamship Co., lOi; X"^. Y. 200; Falvey v. Georgia E. 
 E. Co., 76 Ga. 597. 
 
 6 Goold V. Chapin, 20 X. Y. 259; McDonald v. Western E. Co., .34 X^". y. 497; Miller 
 V. Steam Xav. Co., 10 X. Y. 431. 
 
 ' Ladue v. Griffith, 25 X. T. 364. 
 
Bailments foe Hire. 259 
 
 doubtless justify him in taking tlie proper steps renouncing any fur- 
 ther liability as a carrier.^ But so long as he retains the goods, waiting 
 upon the action of the next carrier, his character remains unchanged. 
 The contract of each is to carry and deliver to the next carrier ; his 
 duty as a carrier is not therefore fulfilled until the delivery is made ; 
 and it is considered sound public policy that a strict responsibility 
 should cover the goods until they reach their destination.^ 
 
 The manner in which a carrier uniformly delivers goods to the suc- 
 ceeding carrier, as by placing them upon an adjacent platform, indicates 
 the duty of each in the transaction." 
 
 § 340. There may be special cases where the carrier receives goods to 
 be carried to the end of his route, and then forwarded by the first oppor- 
 tunity to another point ; where the contract is double, and the goods 
 have to be stored to await the opportunity to send them forward. 
 Thus, where common carriers undertook to carry goods from Stourport 
 to Manchester, and to forward them from thence to Stockport, and 
 carried them according to agreement safe to Manchester, and there 
 deposited them in a warehouse of their own, where they were destroyed 
 by fire before an opportunity occurred to forward them, Lord Kenyon 
 held that the liability of the carriers, as such, ceased when the goods 
 were put into the warehouse ; and that in the capacity of warehouse- 
 men, they were not responsible for an injury arising from no want of 
 diligence on their part.^ In cases of this kind, where the carrier makes 
 a distinct contract to forward the goods from the end of his route, and 
 the circumstances imply an undertaking on his part to store the goods 
 nntil they can be sent forward, or where they reach a place of deposit 
 where they are to remain till ordered forward, there is no reason for a 
 departure from the early rule. But where the carrier stores them for 
 his own convenience at any point along the route, or at its termination, 
 preparatory to a delivery, he is liable as a carrier, and not as a ware- 
 houseman.^ 
 
 1 Mills V. Michigan Central R. K. Co., 45 N. T. 622; Plantation No. 40 v. Hall, 61 
 Maine, 517; Eawson v. Holland, 59 N. T. 611. 
 
 ^ Railroad Co. v. Manufacturing Co., 16 Wallace, 318; Corkey v. Milwaukee & St. 
 P. K. E., 31 Wis. 619; Irish v. Milwaukee & St. Paul R. R., 19 Minn. 3%; McDonald 
 y. Western R. E. Co., 84 N. T. 497; Goold v. Chapin, 20 N.T. 259; Fenner t. Buffalo 
 & State Line E. R. Co., 44 N. T. 505; Ladue v. Griffith, 25 N". T. 364; Nashua Lock 
 Co. Y. Railroad Co., 48 N. H. 339; Barter v. Wheeler, 49 N. H. 9. 
 
 ' Converse v. Norwich & N. Y. Transp. Co., 33 Conn. 166. The usage also controls 
 the delivery to the consignee. Farmers & Mechanics' Bank v. Champlain Transp. 
 Co., 23 Vt. 186, 209. 
 
 * Garside v. Proprietors of Trent & Mersey Nav. Co., 4 Term E. 581. See Salinger 
 V. Simmons, 2 Lansing, 325; S. C. 57 Barb. 513; 8 Abb. Pr. N. S. 409. 
 
 6 Forward v. Pittard, 1 Term R. 27; Hooper v. Wells, Fargo & Co., 27 Cala. E. 11; 
 
260 Law of Bailment.^. 
 
 § 341. When a given mode of delivery becomes the established course 
 of business between a carrier and a consignee, it affects them on the 
 theory of a tacit understanding to follow the usage ; ^ and that is tlie 
 ground on which parties are bound by a uniform settled usage or cus- 
 tom of business. They are supposed to adopt it and carry on their 
 business under it.'^ Hence, in some of our States, the carrier by rail 
 becomes a warehouseman, where, on the arrival of goods at the depot or 
 at way-stations along the line, it is the well-known and settled custom 
 for him to store the goods, and for the consignee to come and take them, 
 without notice.^ 
 
 § 342. It i.s sometimes difficult, and as important as it is diflEicult, to 
 determine when the duties of a warehouseman begin, and from what 
 time he is chargeable with the care and custody of the goods. Where 
 he receives them from the carrier, his responsibility commences at the 
 point where that of the carrier ends. If, by the custom of the place to 
 which the goods are directed, the carrier delivers them to the consignee 
 by depositing them in a warehouse, the delivery is not complete so as to 
 discharge the carrier, until they are actually stored within the build- 
 ing.^ If a carrier on the canals, in unloading his boat at the termination 
 of the voyage, uses the tackle or machinery of a warehouse in hoisting 
 the goods from his boat, he makes the machinery his own for that pur- 
 pose ; and if it breaks so as to injure or destroy the goods, he is respon- 
 sible for the loss. His undertaking includes the duty of delivering them 
 in safety ; and his responsibility continues until the act of delivery is 
 completed.'' 
 
 § 343. When goods are carried to a warehouse for storage, the ware- 
 houseman is liable for the goods lost or injured, from the time his crane 
 is applied to raise them into the warehouse; he is responsible for the 
 strengtli and safety of the tackle and machinery used by him." The 
 act of lowering from, as Avell as the hoisting of goods into the warehouse, 
 
 Hide V. Trent & Mersey Nav. Co., .5 Term R. .389; Rogers v. Wheeler, 6 Lansing, 420; 
 S. C. .Oli N. Y. 262; Sultana v. Chapman, 5 Wis. 454. 
 
 1 The J. Russell Manuf. Co. v. The N. H. Steamboat Co., 52 N. Y. 657. 
 
 2 Gibson v. Culver, 17 Wend. 305; Ely v. New Haven Steamboat Co., 53 Barb. 207. 
 8 Norway Plains Co. v. Boston & Maine R. Co., 1 Gray, 263. See Tanner v. Oil 
 
 Creek Railw., 53 Penn. St. 411; New Albany & Salem R. R. v. Campbell, 12 Ind. 55; 
 Morris tt Essex R. R. v. Ayres, 5 Dutcher, 3'.I4; Francis v. Dubuque R. R., 25 Iowa, 
 60; Hillard v. Weldon R. R., 6 Jones (N. C), 343; Chicago & H. R. R. v. Scott, 42 
 111. 132. 
 
 * See Salinger v. Simmons, 2 Lansing, 325; 8 Abbott Pr. (N. S.) 409; 57 Barb. 513. 
 
 6 De Mott V. Laraway, 14 Wend. 225; Miller v. Steam Nav. Co., 10 N. T. 431; Kil- 
 roy V. Delaware & Hudson Canal Co., 121 N. T. 22. 
 
 « Thomas v. Day, 4 Esp. E. 202. 
 
Bailjients pok Hike. 261 
 
 is considered done under his direction. jVccordingly, where a ware- 
 houseman at Liverpool employed a master porter to remove a barrel 
 from his warehouse, and the master porter employed his own men and 
 tackle, and through tlie negligence of the men the tackle failed, and the 
 barrel fell upon and injured a passer-bj', it was held that the warehouse- 
 man was liable in case for the injury.^ The servant's negligence in the 
 •course of his busmess is attributed to his master ; as where througli 
 his negligence the goods are not delivered when called for, and are 
 afterwards destroyed by five.^ But the -svarehouseman is not responsible 
 for the neglect of his servants to aid in preserving property from fire, 
 when they are not on duty ; as where they are casually present at a 
 tire in the night-time." 
 
 § 344. The warehouseman's duty of diligence covers his entire busi- 
 ness, including the construction and safety of his warehouse;* the 
 proper storing of the goods with respect to the strength of the floors ; '' 
 and the nature of the property ; " and all due and reasonable precautions 
 against losses by theft, burglary and other perUs.'' Let us take a case 
 for illustration : A quantity of salt was delivered to a warehouseman at 
 Buffalo, on the wharf in front of his warehouse, where he had it piled 
 up in tiers ; the wharf and store were built considerably higher than 
 the water had ever been previously known to rise ; the salt remained 
 there some days, when the warehouseman was requested to put it in 
 store, which it was agreed should be done unless it was soon sold; di- 
 rectly after, a gale upon the lake caused the water to rise so as to over- 
 flow the wharf and wet and destroy the salt contained in the lower tier 
 of barrels ; and in an action for the property destroyed, it was shown that 
 the injury could not have been much less if the salt had been placed 
 within the warehouse ; and accordingly the charge of the circuit judge 
 was held to be good law, that the warehouseman was liable only in 
 consequence of neglect to use such care in the preservation of the salt 
 
 1 Eandleson v. Murray, 8 Adolph. & Ellis, 109. See as to the relation of master and 
 servant, Milligan v. Wedge, 12 Adolph. & Ellis, 737; and McMuIlen v. Hoyt, 2 Daly, 
 271; and Chapman v. N. T. Central R. R. Co., 33 K. T. 369; Gibson v. Inglis, 
 4 Camnb. 72. 
 
 2 Stevens v. Boston & Maine R. Co., 1 Gray, 277. 
 
 ' Aldrich v. Boston & Worcester Railroad Co., 100 Mass. 31. 
 
 * Waldon v. Finch, 70 Penn. St. 461. Taking reasonable care in the erection of his 
 ■warehouse, he is not liable for occult defects of which he had no means of knowledge. 
 The law is more strict where a structure is erected to be let as a platform from which 
 to observe the races. See Francis v. Cockrell, L. R. 5 Q. B. 184; E. S. of U. S. 636. 
 
 5 Edwards v. Haliuder, Poph. 46. 
 
 e Cliff V. Danvers, Peake N. P. C. 114. 
 
 ' Schwerin v. McKie, 5 Eobt. 404, 421; S. C. 51 N. Y. 180. 
 
262 Law of Bailments. 
 
 as prudent men ordinarily take of tlieir own property; that to justify a 
 verdict against Irim, tlie jui-y must be satisfied that the injury complained 
 of -u'as occasioned liy the neglect of the depositary, either in not raising 
 his wharf to a sufficient heiglit, in not rolling the salt into the store- 
 house, or in not securing it after the commencement of the storm; and 
 that if tliey should be of the opinion that he ought to have rolled the 
 salt into the storehouse before the storm, the plaintiff would be entitled 
 to recover the diiference between the injury which the salt received on 
 the wharf and that which it would probably have received had it been 
 rolled into the storehouse.' 
 
 § o4r>. Xot to anticipate and provide against a flood greater than has 
 ever been known is not negligence ; it is not negligence in a common 
 carrier.- The warehouseman must certainly build with reasonable care, 
 having respect to the situation ; he is not required to exercise excessive 
 diligence, inconsistent with a reasonable prosecution of his business ; and 
 he is required to act with ordinary prudence and forecast.^ He ought 
 to use sound materials and competent skill in the construction of his 
 warehouse. 
 
 § 34G. Having once incurred a liability for the negligent injury of 
 goods stored with him, the warehouseman cannot relieve himself from 
 responsibility by showing that after the injury the goods were destroyed 
 without his fault, and that they must have been so destroyed even if 
 no damage had previously occurred.* Injury through his negligence 
 gives the owner a cause of action ; and this is not taken from him by a 
 subsequent total loss of the goods by Are or by superior force. The 
 bailee's position here is analogous to that which he occupies after he has 
 been guilty of a conversion of the goods ; he cannot change the order 
 of events.^ True, where the conversion is merely technical and waived 
 by the owner, the bailee is not liable for a subsequent loss of the goods 
 by fire occurring without his fault.^ 
 
 § 347. A sale by the owner of goods in the hands of a bailee often 
 gives rise to questions of interest. A valid sale transfers the title, and 
 
 1 Knapp V. Curtis, 9 Wend. R. 60. 
 
 2 Read v. Spaulding, 5 Bosw. .395; S. C. 30 N. Y. G30; Michaels v. X. Y. Central 
 R. R., SOX. Y. o(j4. 
 
 3 Bowman v. Teall, 23 Wend. 806; Walden v. Finch, 70 Pa. St. 461; Knapp v. Cur- 
 tis, 9 Wend. R. 60; Grossman v. Fargo, 6 Hun, 310. See Schweriu v. McKie, 5 Eobt. 
 404, 421 ; Willett v. Rich, 142 Mass. 3.50. 
 
 * Powers V. Mitchell, 3 Hill R. ,54.5. 
 
 5 Beach v. Raritan, et.'., R. R. Co., 37 X. Y. 4:57; Disbrow v. Ten Broeck, 4 E. D. 
 Smith, 397. 
 
 8 Carnes V. Xichols, 10 Gray, ,369; Wells v. Kelsey, 38 Barb. 242; 37 X. Y. 143; 15 
 Abbott Pr. 53; 19 How. Pr. 309. 
 
Bailments for Hire. 263 
 
 leaves the goods at the purchaser's risk of loss by fire ; as where grain 
 stored in an elevator is sold, and a receipted bill for the grain is deliv- 
 ered to the purchaser, with an order for the amount accepted by the 
 superintendent of the elevator.^ The risk of loss accompanied the title ; 
 and hence where the sale operates as a present transfer, the goods aie at 
 the risk of the purchaser ; - and where for any reason the title does not 
 pass under the contract, the risk remains with the seller.' 
 
 A sale of goods in the hands of a warehouseman does not of itself 
 operate as an assignment of the contract of bailment.* The contract 
 may be assigned, or the transfer of the goods may be brought to the no- 
 tice of the warehouseman, and being assented to by him, a new contract 
 will arise ; ' or a cause of action for the conversion of personal property 
 may be assigned as a chose m action.* Where the goods are transferred, 
 unaccompanied by an assignment of the contract of bailment, the pur- 
 chaser should demand the goods before bringing his action against the 
 warehouseman ; and he need not do so where a valid cause of action 
 for a conversion is transferred to him. The remedy is to be chosen with 
 care ; the action of trover does not lie against a bailee for losses arising 
 through his omissions or neglect or nonfeasance.' 
 
 § 348. A misdelivery of goods by a warehouseman, arising through 
 either mistake or negligence, is treated as a conversion of the property ; 
 it is an unauthorized disposition of the property ; * and that amounts to 
 a conversion, without any wrongful intent.' For the same reason, the 
 bailee by receipting to a stranger, that is, by giving to a third person a 
 receipt acknowledging his title, is by that act guilty of a conversion ; 
 and he cannot afterward claim to hold the goods on the ground of a lien 
 for storage and charges. He is guilty of an act of bad faith, in hos- 
 tility to the rights of his principal, the true owner ; i" and on that ground 
 
 1 Eussell V. CarringtOD, 42 K. T. 118. See Sturtevant v. Orser, 24 N. Y. 538. 
 
 2 Kimberly V. Patohin, 19 N. T. 3.S0; Pleasants v. Pendleton, 6 Band. 47.3; Terry 
 V. Wheeler, 2.5 N. Y. 520. 
 
 8 Joyce v. Adams, 8 N. Y. 291; Cooke v. Millard, 65 N. Y. 352. 
 
 * Suydam v. Smith, 1 Hill, 182; in this case the warehouseman was held to hail in 
 an action of trover. See Brown v. Treat, 1 Hill, 225; Duguid v. Edwards, 50 Barb. 
 288; and Bates V. Reynolds, 7 Bosw. 685. 
 
 6 Willard v. Bridge, 4 Barb. 361. 
 
 "McKee v. Judd, 12 N. Y. 622; Drake v. Smith, 12 Hun, 532; Eichtmeyer v. 
 Eemsen, 38 N. Y. 206; Gould v. Gould, 36 Barb. 270; Code of Civil Procedure, § 1910; 
 Serat v. TJtica, etc., Ey. Co., 102 N. Y. 681. 
 
 ' Hawkins v. Hoffman, 6 Hill, 586; it does lie against him for a misdelivery. 
 
 8 WUlard v. Bridge, 4 Barb. 361 ; Hawkins v. Hoffman, 6 Hill, 586 ; Bank of Oswego 
 V. Doyle, 91 N. Y. 32, 41. ^ Boyce v. Brockaway, 31 K. Y. 490. 
 
 1° Holbrook v. Wight, 24 Wend. 169. The act must be hostile to the owner' s interest 
 and title. Fouldis v. Willoughby, 8 Mees. & Wels. 540 ; Eldridge v. Adams, 54 Barb. 417. 
 
264 Law of Bailments. 
 
 lie may be held liable for a conversion of the goods.^ Much more a sale 
 of goods without authority from the owner is a conversion of them, 
 though made in good faith and on what was believed to be a rightful 
 authority.- 
 
 § 349. When goods are delivered on an agreement that they shall be 
 returned or paid for at an agreed price, and the person to whom they 
 are delivered refuses to account for them or to return the goods, the 
 owner may maintain an action for them ; and he may recover as the 
 measure of his damages the actual value of the goods with interest from 
 the time of refusal. The defendant having repudiated the contract, the 
 plaintiff may recover in the action of trover." Suing on the contract, 
 the plaintiff recovers the price agreed upon, with interest.* As to third 
 parties, the property in the goods remains unchanged.^ 
 
 § 350. A warehouseman has at common law a lien upon goods en- 
 trusted to him within the line of his business, for his reasonable charges : 
 his lien arose out of a usage of business, repeatedly proved and recog- 
 nized until it came to be considered an established right." It seems to 
 have been a matter of doubt whether the lien thus recognized by the 
 common law was specific and thus limited to the particular goods upon 
 which the charges arose, or was general and attached to any goods in 
 the hands of the warehouseman as security for his general balance of 
 account for such charges or services as warehousemen usually incur 
 or perform.' This doubt has been settled by a statute of this state 
 declaring that a warehouseman or person lawfully engaged exclusively 
 in the business of storing goods, wares and merchandise for hire shall 
 have a lien for his storage charges, for moneys advanced by him for 
 cartage, labor, weighing, and coopering paid on goods deposited and 
 stored with him; that such lien shall extend to and include all legal 
 demands for storage and said above described expenses paid which he 
 
 1 Solomon v. Waas, 2 Hilton, 17'.); Ward v. Forest, 20 How. Pr. 4(>.5. 
 
 2 Spraight v. Hawley, :50 N. Y. 441; Stephens v. Elwell, 4 M. & fS. 2.")'.). 
 
 ^ Stevens v. Low, 2 Hill, 132; Solomon v. Waas, 2 Hilton, 179; Ward v. Forest, 2n 
 How. Pr. 46.5. 
 * Blot V. Borceau, 3 X. Y. 7S, 84. 
 
 5 Connah v. Hale, 23 Wend. 462; post, § 387. 
 
 6 Naylor v. Mangles, 1 Esq. E. 109 ; Spears v. Hartley, 3 Esp. E. 81 ; Trust v. Pirsson, 
 1 Hilton, 292, 296. 
 
 ' Eex V. Hmnphrey, 1 McCl. <t T. 194; Naylor v. Mangles, 1 Esp. 109; Spears v. 
 Hartley, 3 Esp. 81; Buxton v. Bangham, 6 Car. & P. 074; Holderness v. Collinson, 1 
 M. & E. .55; 7 B. & C. 212; 3 Pars, on Cont. 268; 2 Kent's Comm. 6.35; Schmidt v. 
 Blood, 9 Wend. 268; THorgan v. Congdon, 4 X. Y. 552; Blate v. Nicholson, 3 Maule & 
 Sel. 168. See McFarland y. Wheeler, 20 Wend. 467, opinion by Senator Veeplauk; 
 and Lowe v. Martin, 18 111. 286; Sears v. Wills, 4 Allen, 212. 
 
Bailments fok Hire. 2('i5 
 
 may have against the owner of the goods stored ; .and that it sliall be 
 lawful for him to detain tlie goods until such lien is paid.* Under this 
 statute a warehouseman has a general lien upon the goods in his posses- 
 sion for all his charges.^ 
 
 A Avarehouseman cannot assert a lien on goods deposited with him 
 without any authority from the owner ; ' and where he has a lien, he 
 waives it by surrendering the property or by claiming to hold it tor- 
 tiously and in violation of the owner's right.* 
 
 § 351. Usage and custom are often appealed to for the purpose of 
 ascertaining the rights, as well as the duties of warehousemen. "When 
 that is the known and estabUshed custom, they have a right to receive 
 goods from a carrier, in apparent good order, and advance to him his 
 reasonable charges, and hold them subject to the lien of the carrier for 
 the amount so advanced ; and where they deliver to the owner without 
 exacting immediate payment, they may maintain a suit against the 
 owner to recover the amount advanced under the custom. Receiving 
 the goods in apparent good order, they do not acquire simply the car- 
 rier's interest subject to any claim there may be against him for damages ; 
 they do not stand in the relation of assignees of the carrier's charges ; 
 and they do not assume the burden of showing that the goods were not 
 injured while in the custody of the carrier. The owner must look to 
 the carrier for his damages, and cannot recoup them in an action by the 
 warehouseman.^ The custom is the same as that which obtains be- 
 tween successive carriers, for the general convenience of business; 
 being known and established, it enters into the contract between the 
 parties." And it is not considered as binding, where the goods are 
 shipped without authority from the owner, or where the freight is paid 
 in advance.' 
 
 ' Laws of 1885, Chap. 526. 2 Stallman v. Kimberly, 121 N. T. 393. 
 
 » Buxton V. Banghan, 6 C. & P. 674; L. E. 9 Exch. 632. If, after default in the 
 payment of the debt secured by a chattel mortgage, the mortgagor, without the 
 knowledge of tlie mortgagee, stores the mortgaged chattels in a warehouse, the lien 
 of the wareliouseman for storage will be subordinate to the lien of the mortgage. 
 The statute does not give tlie warehouseman a specific lien for the storage of goods 
 deposited witli him against the goods themselves irrespective of by whom deposited 
 and by whom owned. Banmann v. Post, 26 Abb. Jv". C. 134; 34 St. Kep'r, 308. 
 
 * Hollbrook v. Wight, 24 Wend. 169, 179. 
 
 ^ Sage V. Gittner, 11 Barb. 120; Alden v. Carver, 13 Iowa, 2.j3; Bowman v. ITilton, 
 11 Ohio, 303; Hunt v. Haskell, 24 Me. 339. 
 
 ^ Lee V. Salter, Hill & Denio, 163. See Cooper v. Kane, 19 Wend. 3s(;; Dawson v. 
 Kittle, 4 Hill, 107. 
 
 ' Eobinson V. Baker, 5 Cush. 137; Fitch v. Newben-y, 1 Doug. (Mich.) 1; Stevens 
 V. Boston & W. Railroad, 8 Gray, 262; Allen v. Smith, 8 Cowen, .301; Briggs v. Boston 
 & Lowell E., 6 Allen, 24(i. 
 
266 Law of T]ail.ments. 
 
 § 352. A usage of business may also be sbown to interpret a writtf :i 
 receipt of grain !n store or on freight. Being in the nature of a con- 
 tract, it is not open to contradiction in the sense of the rule appUcable 
 to receipts proper ; still, the import of its terms, where these are ambig- 
 uous, is controllable by the usage among grain dealers, where the usage 
 is so universal and well known that the jury are bound to consider it 
 parcel of the contract. The custom is proved as a means of ascertain- 
 ing the meaning of the language used ; and hence the terms employed 
 must prevail in the ordinary sense attached to them, miless it is shown 
 that these have, by a well-known usage of trade, a different signification. 
 The custom is appealed to as explanatory of the transaction, and as 
 showing the intention of the parties.^ It cannot be proved where the 
 contract is definite and certain ; and it cannot be proved to vary a 
 settled rule of law.^ Tlie circumstances may be proved, and the ante- 
 cedent relation of the parties, including a previous parol contract, to 
 interpret a written receipt of goods to hefonrardcd? 
 
 § 353. It is the warehouseman's duty to redeliver the goods, on being 
 paid or tendered his reasonable charges. As in other cases, the delivery 
 must be so made as to charge the owner with the custody of the prop- 
 erty ; and the bailee is discharged as soon as that is done.* Holding 
 by a delegated right, a warehouseman is not permitted as a rule to 
 dispute the title of his ]3rincipal ; he is not allowed to set up a personal 
 claim to the property ; and he Ss, prima facia bound to restore the goods 
 to his bailor.^ The rule rests upon the assumed admission by the 
 bailee of the bailor's title ; it does not rest on the ground of an estoppel. 
 It does not apply where the property is taken from the bailee by process 
 of law or by a paramount title ; ° or where the bailee on demand de- 
 livers the goods to the true owner.' For his own safety, the bailee 
 
 1 Goodyear v. Ogden, 4 Hill, 104; Dawson v. Kittle, 4 Hill, 107. The tenns of a 
 contract, though in the form of a receipt, must prevail; they cannot be varied by 
 parol evidence. Wadsworth v. Allcott, 6 X. T. 64, 71. See Mallory v. Willis, 4 K. Y. 
 7G; Bradley V. WhCL'ler, 44 N". T. 495, 504; Furniss v. Hone, 8 Wend. 247. 
 
 2 Markham v. Jaudon, 41 N. Y. 2:55, 245 ; Townsend Manuf. Co. v. Foster, 51 Barb. 
 346; Larrowe v. Lewis, 44 Hun, 220; Sims v. United States Trust Co., 35 Hun, 533. 
 
 ^ Blossom V. Griffin, 13 N". Y. 569. A warehouseman's receipt is often merely an 
 item of evidence ; its legal effect depends upon the situation of the parties. Gardiner v. 
 Suydam, 7 N. Y. 357. ^ Tittsworth v. Winnegar, 51 Barb. 148. 
 
 i5 Bates V. Stanton, 1 Duer, 79; Simpson v. Wrenn, 50 111. 222. 
 
 « Edson V. Weston, 7 Cowen, 278; Stamford Steam B. Co. v. Gibbons, 9 Wend. 327; 
 Cook V. Holt, 48 N. Y. 275; Edson v. Weston, 6 Cranch, 278; Agle v. Atherton, 5 
 Taunt. 758; Biu-ton v. Wilkinson, 18 Vt. 186. See Roberts v. Stuyvesant Saf e Deposit 
 Co., 123 N. Y. 57. 
 
 ' Hardman v. Wilcock, 9 Bing. 382; King v. Richards, 6 Whart. E. 418; Mullens v. 
 Chickering, 110 IST. T. 513; Western Transp. Co. v. Barber, 56 N. Y. 544, 552. 
 
Bailmekts fob Hike. 26T 
 
 should leave a stranger claiming the property to his action, and 
 give the bailor notice of the suit. This course wUl protect him, 
 and save him the inconvenience of a litigation on behalf of the 
 bailor.* 
 
 § 354. In actions against warehousemen, as against other bailees, 
 the onus of proof rests with the party holding the affirmative on th& 
 pleadings. The plaintiff must prove the fact, where his right to re- 
 cover is based upon an allegation of loss through the defendant's negli- 
 gence ; he must sustain his action by such proof as the circumstances 
 naturally call for.'^ Negligence is a wrong, and not to be presumed. 
 Proof of a total failure to return the goods on demand or to account for 
 the property is prima facie sufficient ; ' the failure is itself evidence of 
 a conversion.^ The bailee cannot fairly remain silent under a demand ; 
 he is bound to give some account of the property.^ If he returns only 
 a part of the goods, or returns them in a damaged condition, he ought 
 to show what has become of the missing goods, or how the damage 
 arose. Being in possession of the property at the time of the loss or 
 injury, and charged with its custody, he ought to explain the loss or 
 the injury ; he has the means of doing so ; the explanation comes- 
 naturally from him.' 
 
 1 Eogers v. Weir, 34 N. Y. 463; Bliven & Mead v. Hudson Eiver R. R., 36 N. T. 403. 
 See Carroll v. Mix, 51; Barb. 212: and Barnard v. Kobbe, 3 Daly, 35, 373; and Ball v. 
 Liney, 48N. T. 6; Welles v. Thornton, 45 Barb. 390, 395; Scranton v. Farmers & 
 Mechanics' Bank, 24 K. T. 424, 427; Roberts v. Stuyvesant Safe Deposit Co., 123 
 N. T. 57. 
 
 2 Lamb v. Camden & Amboy E. R. & T. Co., 46 N. T. 271, 278. 
 
 3 Bush v. Miller, 13 Barb. 483; Schmidt v. Blood, 9 Wend. 268; Claflin v. Meyer, 
 75 N. T. 260, 262; Fairfax v. New York Cent. & H. R. R. R. Co., 67 N. Y. 11; Steers 
 V. Liverpool Steamship Co., 57 N. Y. 1; Burnell v. New York Cent. R. R. Co., 45 
 N. Y. 184; Schwerin v. McKie, 5 Robt. 404; S. C. 51 N. Y. 180; Higgins v. Emmons, 
 5 Conn. 76. But where the failure to deliver is explained by the fact appearing that 
 the goods have been lost, either destroyed by fire or stolen by thieves, and the bailee 
 is therefore unable to deliver them, there is no prima facie evidence of his want of 
 care, and it will not be assumed in the absence of evidence on that point that the fire or 
 theft was the result of his negligence. Claflin v. Meyer, 75 N. Y. 260, 262; Lamb v. 
 Camden & Amboy R. R. Co., 46 N. Y. 271; Schmidt v. Blood, 9 Wend. 268; Mills v. 
 Gilbreth, 47 Me. 320; Stewart v. Stone, 127 N. Y. 500, 506. 
 
 *Dunlap V. Hunting, 2 Denio, 643; Caimes v. Eobbins & Mills, 8 Mees. & Wels. 
 258; Rose v. Hill, 2 Man. Gr. & Scott, 787. 
 
 5 Arent v. Squire, 1 Daly, 347. 
 
 « Clark V. Spencer, 10 Watts Pa. 337; Rex v. Burdit, 4 B. <fc A. 161; Schwerin v. 
 McKie, 51 N. Y. 180; Claflin v. Meyer, 75 N. Y. 260, 262. In Piatt v. Hibbard, 7 
 Cowen, 498, 500, the rule was laid down in these terms: " When property entrusted 
 to a warehouseman, wharfinger, or storing or forwarding merchant, in the ordinary 
 course of business, is lost, injured or destroyed, the weight of proof is with the bailee, 
 to show a want of fault or negligence on his part; or in other words, to show that the 
 
268 Law of Bailments. 
 
 § 355. Wharves. 
 
 The wharves and piers used in our seaports to facilitate the shipment 
 and landing of goods are generally devoted, like highways, to the 
 public use ; the owners of them are bound to keep them in a safe con- 
 dition ; and the lessee is bound to keep them ill repair.^ The own- 
 ership of those which are used in this manner is qualified by the right 
 of the public to go and return upon them ; and the owner's possession 
 is qualified m like manner : neither he nor his tenant can exclude the 
 public from the reasonable use of the premises. This blending of 
 public and private rights is created by the law of the State ; it is 
 iie.'e:ssary in order to promote the construction and proper enjoyment 
 of wharves, piers and slips. The essence of the ownership in them, 
 iillowed by law, when constructed for the public use, is the right to col- 
 lect wharfage from ships and vessels using them, in the ordinary way, 
 t(j receive or discharge their cargo.- Erected on navigable waters, the 
 public have an implied license to use them in the customary way ; ' 
 erected and used as private property, the public have no riglit to enter 
 upon them.* 
 
 injury did not liappen in consequence of liis neglect to use all that care and diligence 
 on liis part that a prudent or careful man would exercise in relation to his own 
 property." In Schmidt v. Blood, 9 Wend. 268, the warehouseman offered to show 
 that the goods had been purloined, and the evidence being excluded, the court on 
 review granted a new trial, with this remark: " The onus of showing negligence 
 seems to be upon the plaintiff, unless there is a total fault in delivering or accounting 
 for the goods." Approved in Foote v. Storrs, 2 Barb. 326; and in Harrington v. 
 Snyder, 3 Barb. 380; and in Wiggins v. Hathaway, 6 Barb. 632; and in Bush v. 
 Miller, 13 Barb. 481; and in Davison v. Owners of Crystal Palace, 9 How. Pr. 6; and 
 in Williams V. Holland, 22 How. Pr. 13*7; and in Schwerin v. McKie, 5 Eobt. 404; 
 S. C. 51 jSr. T. 180; where a part of the goods were not redelivered, it was held that the 
 burden of proof as to diligence was on the warehouseman. The authorities are con- 
 flicting in regard to the burden of proof. See cases cited by coimsel in Lamb v- 
 Camden & Amboy R. R. & T. Co., 40 N. Y. 274, and by Peckh-UI, J., in his dissent- 
 ing opinion — id. 289. See Cass v. Boston & Lowell Eailroad Co., 14 Allen, 448; and 
 Baron v. Eldredge, 100 Mass. 460; post, § 446. 
 
 iRadwayv. Briggs, 37 N. Y. 256; Wendell v. Baxter, 12 Gray, 494; Pittsburgh 
 City v. Grier, 22 Penn. St. 54; Lan. Canal Co. v. Parnaby, 11 Ad. & Ell. 223; Thomp- 
 son V. N. E. Railway Co., 3 Best & Smith, 106; Smith v. London & St. K. Docks Co., 
 L. R. 3 C. P. 320; 37 L. J. C. P. 217. 
 
 2 The Mayor, etc., of N. Y. v. Rice, 4 E. D. Smith, 604; Taylor v. Atlantic M. Ins. 
 Co., 37 N. Y. 275. See further under the laws relating to the City of New York: 
 Marshall v. Guion, 11 N. Y. 461; Furman v. New York City, 10 N. Y. 567; and 
 Brooklyn : Wetmore v. The Brooklyn Gas Light Co., 42 N. Y. 384; Wetmore 
 T. Atlantic White Lead Co., 37 Barb. 70. 
 
 * Heaney v. Heaney, 2 Denio, 025 ; Swords v. Edgar, 59 N. Y. 28. 
 
 * Wetmore v. Brooklyn Gas Light Co., supra; CoUett v. London * X. R., IG Ad. & 
 El. N. R. 984, 989; Pittsburgh City v. Grier, 22 Penn. St. 54; Thompson v. Mayor, 
 etc., 11 N. Y. 115. 
 
Bailjxexts foil HniB. 269 
 
 § 356. WlIAEFINGEES. 
 
 The similarity of their duties, often performed by the same persons, 
 has occasioned the terms warehousemen and wharfingers to be used 
 sometimes in the books interchangeably, as if they conveyed substan- 
 tially the same meaning. But this is inaccurate ; the warehouseman 
 receives goods and merchandise into his warehouse to be stored for 
 hire ; and the wharfinger keeps a wharf, for the purpose of receiving 
 and shipping merchandise to or from it for hire. They are historically 
 and actually distinct branches of business, and yet they are often 
 united ; as where a wharfinger procures and appropriates a warehouse 
 on the wharf, and assumes also the duties and the character of a ware- 
 houseman.^ 
 
 § 357. The wharfinger's responsibility begins as soon as he acquires 
 the custody of the goods, and ends when he has fulfilled his express or 
 implied contract with respect to them. What will amount to a deliv- 
 ery of the goods to him, so as to charge him with the custody of them, 
 depends very much upon the custom and usages of the business. A 
 mere delivery at the wharf is not enough, unless accompanied with 
 express notice, under such circumstances as will imply a consent on 
 his part to receive them.^ If it be according to the custom and un- 
 derstanding of the parties, a delivery of the goods on the wharf with 
 notice will be sufficient to charge the bailee." If the goods be received 
 into a warehouse situated on the wharf, to be forwarded, the bailee, it 
 seems, does not hold them as a wharfinger ; he is a warehouseman just 
 the same as if his storehouse stood in some other part of the town.* 
 Some of the English cases speak of and treat him, under these circum- 
 stances, as a wharfinger.^ But names are not material, since the duties 
 incident to his situation and character are the same by whatever name 
 he is called. If he receive the goods on the wharf, to forward by a 
 carrier as soon as he can find an opportunity, and in the mean time 
 stores them in his warehouse ; the measure of his responsibility re- 
 mains all the while the same ; he is bound to exercise the ordinary dili- 
 gence and care of a prudent man in their preservation.^ 
 
 1 Bouvier's Law Dictionary; and White v. Humphrey, 11 Adolph. & Ellis, 43. 
 
 ^ Gibson V. Inglis, 4 Camp. 72; Buckman v. Levi, 3 Camp. 414; Packhard v. Get- 
 man, 6 Cowen, 757; Grosvenor v. The N. T. C. R. E. Co., 39 N. T. .34; Etna Ins. Co. 
 V. Wheeler, 5 Lansing R. 480. The delivery must be made to some one authorized to 
 receive the goods. Leigh v. Smith, 1 C. & P. 638; R. & M. 224. 
 
 8 Cobban v. Donne, 5 Esp. 41. * Piatt v. Hibbard, 7 Cowen, 497. 
 
 5 White V. Humphrey, 11 Adolph. & Ellis, 43. 
 
 6 Matter of Webb and others, 8 Taunt. R. 443; Quiggin v. Dufe, 1 Mees. & Wels. 
 174; Piatt v. Hibbard, supra; Roberts v. Turner, 12 John. R. 232; Brown v. Denison, 
 2 Wend. 593; Dillon v. N. T. & Erie R. R. Co., 1 Hilton, 231. 
 
270 Law or Bail.mf.xt,;. 
 
 § 358. It has been sometimes said that the duties of a wharfinger 
 are similar to those of a common carrier. The authorities do not sus- 
 tain the proposition. Lord Ellenborough, it is true, in one instance at 
 JV^isi Pritis, where the goods had been accidentally destroyed by fire 
 while in the hands of the wharfingers, does speak of their liability as 
 similar to that of a carrier ; but the case did not turn upon that point ; 
 it was a part of the duty of the defendants, as lightermen, to convey 
 the goods from the wharf in their own lighters to the vessel in the river, 
 on which they were to be shipped ; but it appeared in evidence, and 
 was allowed to control the case, that the defendants had limited their 
 liability, so as not to cover a loss by fire, by giving notice to the vendor 
 of the goods to that effect.^ The other cases cited in support of the 
 doctrine are simply JActn. of the judges, made incidentally in the course 
 of a trial on principles not involved in the decision of the court.^ 
 
 § 359. The liability of a wharfuiger is not distinguishable in degree 
 from that of a warehouseman ; both are bound to take common and 
 reasonable care of the goods delivered to them. What will be regarded 
 as ordinary care and diligence, is generally a question of fact for the 
 jury, to be determined from the circumstances of the case. The wharf- 
 inger, of course, will not be required to take the same care of lumber 
 received and piled ux3on his wharf as he takes of merchandise and such 
 goods as may be easily purloined and stolen. The nature of the article, 
 the time of the deposit, and the dangers to which it is exposed are all 
 proper circumstances to be considered in determining the diligence de- 
 manded of the bailee ; for in this manner alone can it be ascertained that 
 he has exercised, or failed to exercise, the ordinary care and diligence 
 of a prudent man ; a failure in which degree of care renders him Uable.' 
 
 As the same rule applies to both of these classes of bailees, the 
 decisions in respect to the habilities of warehousemen are in point to 
 illustrate the duties of wharfingers in taking care of the articles bailed. 
 They are to use ordinary diligence in keeping and guarding the prop- 
 erty, while in their possession, and in delivering or forwarding it ; hav- 
 
 1 Slaving V. Tijdd, 1 Stark. R. :,\) ; 4 Campb. -sir,. 
 
 - Ross V. Joliiison, ."j Durr. L'S27; Ismuk v. Clerk, ilnoro, 841; 7 Cowen, .jr;i, note 
 liy the reporter. This distinction between the argument of tlie judge and tlie judg- 
 lariii of tlie court, familiar to all lawyer.^, is always m-Xterial. On the precise issue 
 presented, the judicial decision is the authoritative witness of what the law is; but 
 the argument with which it is sustained is only matter of illuslration, that derives its 
 weight from the individual character of the judge and the inherent force of Ms rea- 
 soning. 
 
 ^ White X. Htimphrey, 11 Adolph. ct Ellis R. 40; 1 Mees & Wels. 174; Foote v. 
 Storrs, 2 Uarb. :yCi; 10 Walts, ;!:!.".; Blin v. M:iyo, 10 Tt. .5(i; Hatchett v. Gibson, 1.3 
 Ala. l;. .'■)s7; nemphill v. Chenie, Watts ct Seig. 62, 7.". 
 
Bailments poe Hire. 271 
 
 ing used such diligence they are no longer liable, though the goods be 
 destroyed by fire, stolen by thieves, or embezzled by the person having 
 them in charge.^ 
 
 § 360. The wharfinger is not responsible for goods casually burnt 
 upon his premises. But where he gets them insured against loss by 
 lire, and they are burned, and the insurance money is paid to him, the 
 owner may recover of him the moneys representing the value of his 
 goods, after deducting the lien and expenses. The bailee derives his 
 interest from the owner, and the insurance must be deemed to have 
 been made for his protection, after satisfying the legal demands of the 
 agent.^ The same rule has been applied in favor of the owner of goods, 
 insured by his factor without being requested so to do. The bailee has 
 an insurable interest in the goods, and on the happening of a loss by 
 fire he recovers their full value ; pays his own debt on account of the 
 property, and holds the residue in trust for the owner. 
 
 § 361. Wharfingers are answerable for their servants; and where 
 they provide the men to do the work of unloading vessels, and permit 
 no others to be employed thereon, they are responsible for the negli- 
 gence of their servants, in unloading the goods, although they derive no 
 profit from their labor. By keeping the wharf and furnishing the men, 
 they make the business their own, and must answer for losses occur- 
 ring through the negligent manner in which the work is done.' As 
 masters of the business, they must answer for the negligent conduct of 
 their agents and servants. 
 
 § 362. The wharfinger is bound to return or deliver the goods accord- 
 ing to his contract ; and it is his duty to deliver at the proper place 
 and to a person authorized to receive the property.^ 
 
 A wharfinger stands in the same relation to the title as a warehouse- 
 man ; he derives his interest m the goods and his right of control over 
 them from the owner ; he admits the title of the party from whom he 
 receives them, just as a tenant admits the title of the landlord under 
 whom he holds.^ He does the same thing when, after a sale of the 
 
 1 Brown v. Denison, 2 Wend. 593; Schmidt v. Blood, 9 Wend. 268. See Roberts v. 
 Turner, 12 Johns. 232; Garside v. Trent Nav. Co., 4 T. E. 581; Ackley v. Kellogg, 8 
 Cow. 223; Seymour v. Brown, 19 Johns. 44; Chenowith v. Dickinson, 8 B. Mon. R. 
 156; ante, §§ 333, 344, 345, 354. 
 
 2 Sidaways v. Todd, 2 Stark. E. 400; Waters v. Monarch Life and Fire Ins. Co., 5 
 El. & Bl. 870; 25 L. J. Q. B. 102. See Siter v. Morrs, 13 Pa. St. 218; Still well v. 
 Staples, 19 y. T. 401; Lee v. Adsit, 37 N. T. 78; Waring v. Indemnity Fire Ins. Co., 
 45 N. T. 606. 
 
 ' Gibson v. Inglis, 4 Campb. 72; Coggs v. Bernard, 2 Ld. Eaym. 909; ante, § 843. 
 * Cobban v. Downe, 5 Esp. 41; Leigh v. Smith, 1 C. & P. 638; E. & M. 224. 
 5 Gobling V. Birnie, 7 Bing. 339; 5 M. & P. 160. 
 
272 Law of Bail^ienis. 
 
 goods in his hands, he recognizes the right of the purchaser, by accept- 
 ing a delivery order for the property : and he cannot afterward dispute 
 the title thus acknowledged.^ He cannot set up title in himself exist- 
 ing at the time he received the goods ; and it is believed he cannot set 
 up title in a third person unless he connects himself with it. He can 
 show that the bailor's title has terminated since the bailment, that he 
 has delivered the property to the owner, or that the property has been 
 taken from him by legal process, or that a recovery has been had against 
 him for the property in an action of which the bailor had notice.^ And 
 though guilty of a conversion of the goods, in refusing to deliver them 
 on demand, he may show in mitigation of damages a subsequent seizure 
 and sale of the goods under a process against the bailor.^ 
 
 § 363. The law considers the substance of a contract, rather than its 
 form. A contract made by a carrier to fonrard goods to a point beyond 
 the termination of his line makes him a common carrier for the whole 
 distance : in substance his agreement is to carry and deliver the goods 
 to the place of destination, and he does not become a mere forwarder at 
 the termination of his line. His contract covers the entire transporta- 
 tion, including each transshixJment ; and the law enforces the contract. 
 It assumes also that the agent of a railway company may bind his prin- 
 cipals by a contract for carriage over other roads running in connection 
 with his own ; * and the validity of the contract does not depend upon 
 
 1 Hall V. Griffen, 3 M. * Scott, 732; 10 Bing. 24(1; Woodley v. Coventry, 2 H. & C. 
 164; 9 Jur. 2 C. & M. 531; 4 Tyr. 290. 
 
 2 Western Tr. Co. v. Barber, r.() N. Y. 544, 552; Biddle v. Bend, 6 Best & Smith, 
 224; Cook v. Holt, 48 Js'. T. 275; Burton v. Wilkinson, 18 Vt. ISi!; Mullins v. Chick- 
 ering, 110 X. T. 513. 
 
 "Higgins T. Wliitney, 24 Wend. 379; Sherry v. Schuyler, 2 Hill, 204; Curtis v. 
 Ward, 20 Conn. 204. See Wehle v. Butler, 61 N. T. 245, 249; Hammer v. Wilsey, 17 
 Wend. 91; Otis v. Jones, 21 Wend. 394; Lyon v. Tates, 52 Barb. 237; Sprague v. 
 McKinzie, 63 Barb. 60; Peak v. Lemon, 1 Lans. 295; Pierce v. Benjamin, 14 Pick. 
 356; Roberts v. Stuyvesant Safe Deposit Co., 123 N. T. 57, 67. It is not the seizm-e 
 that gives the defense in mitigation of damages, but the application of the proceeds of 
 the property to the payment of the bailor's debts. Per Eakl, C, in Ball v. Liney, 
 48 N. Y. 6. 
 
 ■i Wilcox V. Parmelee, 3 Sand. R. 610; a contract to forward goods from New York 
 to Fairport, Ohio; the defendant's line terminating at Buffalo, from which the goods 
 were to be shipped by vessel: held a carrier's contract to Fairport. The same inter- 
 pretation is given to a similar contract in P^ead v. Spaulding, 5 Bosw. 394, 404; S. 0. 
 30 N. Y. 630. See also, Fairchild v. Slocum, 19 Wend. 329; Weed v. S. & S. E. E. 
 Co., 19 Wend. 534; Condict v. Grand Trunk R. Co., 54 N. Y. 500; Mobile & Girard 
 R. E. Co. V. Copeland, 63 Ala. 219; Erie Ey. Co. v. Wilcox, 84 111. 239. The contract 
 is to be enforced in its true sense; and the circumstances may show that the agree- 
 ment was in fact that of a forwarder from the end of the carrier's route. Eeed v. U. 
 S. Ex. Co., 48 N". Y. 462. 
 
Bailments for Hieb. 273 
 
 the agent's authority to bind the connecting lines.^ The contracting 
 carrier assumes the liability of the connecting lines engagfed in complet- 
 ing the transportation.^ Without an express contract, the carrier in 
 this and other States of the Union does not by receiving goods marked 
 or addressed to a place beyond the terminus of his route, impliedly con- 
 tract to carry them to the place of their destination ; his implied engage- 
 ment is to carry them to the end of his route and there deliver them to 
 the next carrier ;^ and until the delivery is made his liability remains 
 undiminished.* His duties at the end of his route are in some particu- 
 lars like those of a forwarder ; he must send the goods forward accord- 
 ing to his contract, whether expressed or implied ; and in the absence 
 of an agreement, he must send them by a responsible carrier, pursu- 
 ant to his instructions.' But he does not act as a forwarder, or simply 
 under the liability of a wharfinger in the transshipment of the goods.' 
 
 § 364. Liens. 
 
 A wharfinger has at common law a lien upon the goods entrusted to 
 him, to the extent of his reasonable charges ; a general lien on the goods 
 of his customer in his possession, for his balance in respect of freight 
 and wharfage.' His general lien for the balance of his accounts does 
 not cover charges for labor or for warehouse room, where there is no 
 contract to that effect, express, or implied from a general continued and 
 undisputed usage.^ His hen does not attach unless the goods are landed 
 
 1 Hart V. K. & S. R. Co., 8 N. T. 3*7; Milnor v. New York & N. H. R. R. Co., 53 
 N. T. 363. 
 
 2 Quimby V. Vanderbilt, 17 N. Y. 306; Williams v. Vanderbilt, 28 N. T. 217; Buf- 
 fett T. Troy & Boston R. R. Co., 40 N. Y. 168, and note 179; Milnor v. N. Y. & N. H. 
 E. E. Co., 53 N. Y. 363; Manhattan Oil Co. v. C A. R. E. & T. Co., 54 N. Y. 197. 
 
 8 Root V. The Great Western E. E. Co., 45 N. Y. 524; Burtis v. Buffalo and State 
 Line E. Co., 24 N. Y. 269; Eawson v. Holland, 59 N. Y. 611; .Jennings v. Grand 
 Trunk Ey. Co., 127 N. Y. 4-38; Knight v. Providence & Worcester E. E. Co., 13 R. I. 
 572; Goldsmith Y. Chicago & Alton R. R. Co., 12 Mo. App. 479; Knott v. Raleigh & 
 G. R. R. Co., 98 N. C. 73; Crouch v. Louisville, etc., R. R. Co., 42 Mo. App. 248. See 
 Lamb v. Camden & Amhoy E. & Tr. Co., 46 N. Y. 271; Babcock v. L. S. & M. S. E. 
 Co., 49 N. Y. 491. 
 
 * Johnson v. N. Y. C. E. E. Co., 31 Barb. 196; S. C, 33 N. Y. 610; McDonald v. 
 Western E. E. Corp., 34 N. Y. 497; 3 Lansing, 265. 
 
 6 Johnson v. N. Y. Central E. E. Co., 33 N. Y. 610; Hinckley v. N. Y. C. & H. E. R. 
 Co., 56 N. Y. 429; St. John v. Van Santvoord, 6 Hill, 157; 8 Cowen, 223. 
 
 6 McDonald v. Western R. E. Corp., 34 N. Y. 497; Mills v. Michigan Central R. E. 
 Co., 45 N. Y. 622; 52 N. Y. 262. 
 
 'Naylorv. Mangles, 1 Esp. 109; Spears v. Hartley, 3 Esp. 81; Rushforth v. Had- 
 field, 6 East, 519; 7 East, 224. See Sage v. Gittner, 11 Barb. 120; Dresser v. Bosan- 
 quet, 4 B. & S. 460; 116 E. C. L. R. 
 
 8 Holdemess v. Colllnson, 1 M. & R. 55; 7 B. * C. 212. In Naylorv. Mangles (1 
 
 18 
 
274 La"w of Bailjments. 
 
 on his wharf.^ And where the goods in his hands are sold, and the 
 owner pays his charges to the date of the sale, giving him notice of the 
 fact, he cannot acquire any further demand against the vendor on 
 account of the goods. ^ 
 
 The wharfinger has a lien on a vessel for wharfage ; ^ and where the 
 vessel is secretly or wrongfully removed from the wharf, and afterward 
 brought back without force or fraud, his lien is revived. The law gives 
 him a lien as a means of collecting his charges ; and where the vessel 
 departs with the goods, leaving the wharfage unpaid, the wharfinger 
 may recover his demand from the owner.* 
 
 The lienholder waives or loses his lien by surrendering the possession 
 of the property ; ^ or by entering into a contract or into a course of deal- 
 ing under which goods are to be received and deUvered, without requir- 
 ing prepayment of charges thereon.* This results from the nature of a 
 lien ; which is not an estate or interest in the property, neither aju.^ ad 
 
 Esp. 109), Lord Kenyon said liens were either by common law, usage or agreement; 
 that a lieu from usage was matter of evidence ; that the usage in the present case had 
 been proved so often it should be considered a settled point; and that liens by com- 
 mon law arose where a party was obliged to receive the goods. In Spears v. Hartley 
 {'■] Esp. 81), Lord Eldon considered the wharfinger's lien for the balance of a general 
 account as perfectly settled, and that he might hold the goods under it after the 
 demand is barred by the statute of limitations. In Holderness v. CoUinson (7 B. & 
 C. 212), the general lien for wharfage was admitted; but the court refused to allow a 
 lien claimed for laborage (comprising landing, weighing and delivering) and ware- 
 house rent ; because the custom proved was not sufficiently certain and uniform to 
 lay a foundation upon which an express or implied contract could be found, to act 
 upon it. In Rushforth v. Hadfield, 6 East, .519, an effort was made to establish the 
 carrier's right to a lien for his general balance on the ground of a general usage; and 
 the court allowed that a contract to that effect might be established by proof of a 
 usage or course of dealing between the parties, and declined to uphold the usage as 
 creating a rule of law. S. C. 7 East, 224, the court held the same doctrine, that the 
 claim was against the general law of the land, and therefore to be regarded with 
 jealousy. In Kirkman v. Shawcross, 6 Term, 14, the court held valid a general 
 agreement entered into by a number of dyers, dressers and bleachers, that they would 
 not receive goods to be dyed, dressed or bleached, but on condition that they should 
 respectively liave alien on such goods for their general balance; and that persons 
 afterward delivering goods to them with knowledge of it must be taken to have 
 assented to the terms of the agreement. A. D. 1794. 
 
 1 Seyds v. Hay, 4 Term R. 260. 
 
 2 Barry v. Longmore, 12 A. & E. 639. 
 
 3 The Phebe, Ware, .354. 
 
 * Gilpin R. 101; Fitzsimmons v. Milner, 2 Rich. R. 310. 
 
 5 Jordan v. James, 5 Ham. R. 88; Jones v. Pearle, 1 Str. 556; Houghton v. Mathews, 
 3 Bos. * Pull. R. 4S5. 
 
 6 Dunham v. Pettee, 1 Daly, 112; Crawshay v. Homfray, 4 B. & Aid. 50; Cliase 
 V. ■\Vitmore, 5 M. & S. 306; Hutton v. Brugg, 2 Marsh, 345. 
 
Bailments foe Hiee. 275 
 
 rem, nor a jus in re, but a simple right to retain the property till the 
 charges thereon are paid.^ 
 
 § 365. A factor has a particular lien on the goods entrusted to him, 
 for his charges incurred on their account ; a general lien on the goods in 
 his possession for the balance of his account arising in the course of 
 dealings between him and his principal ; and also a lien upon the pro- 
 ceeds of his principal's property sold by him as a factor, and upon the 
 securities taken by him on the sale.^ His lien covers advances and lia- 
 bilities assumed, commissions and customary charges ; and it attaches 
 to the goods when they come into his lawful possession.' He acquires 
 his lien when he accepts the consignment on the terms proposed to him, 
 and receives the property.* Until the property reaches him, the con- 
 signor has the power, even in violation of his agreement with the con- 
 signee, to pledge the bill of lading as a security for the payment of a 
 draft drawn against the consignment ; and where this is done, the con- 
 signee must accept the draft or he will not be entitled to receive the 
 property.^ The transfer of the bill of lading for value prevails against 
 the consignee or factor's lien for a general balance." 
 
 § 366. Receiving goods with knowledge that advances have already 
 been made upon them, the factor receives them subject to existing 
 rights.' But his lien for his general balance will attach, where he re- 
 ceives the goods without any knowledge of such previous advances.s 
 And where the consignee or factor himself makes advances upon the 
 property by accepting and paying a draft with the bill of lading attached, 
 he is entitled to protection as a bona fide purchaser ; his right is superior 
 to that of the unpaid vendor of the goods ; ' he is entitled to hold the 
 property." 
 
 Not only has the factor a right to hold the goods as security for ad- 
 vances made upon them ; it is his duty to do so ; he must look to the 
 proceeds of the sale as the primary fund out of which they are to be 
 
 1 Meany v. Head, 1 Mason R. 319. 
 
 2 Bryce & Eemiie V. Brooks, 26 Wend. 367, 374; Green t. Farmer, 4 Burr. 2218; 
 Walker v. Birch, 6 Term K. 262; Vail v. Durant, 7 Allen, 408; Meyer v. Jacobs, 
 1 Daly, 32; McGraft v. Eugee, 60 Wis. 406; Weed v. Adams, 37 Conn. 378. 
 
 » Bank of Eochester v. Jones, 4 N. T. 497; Mitchell v. Ede, 11 Adolph. & Ellis, 888. 
 
 * Winter v. Coit, 7 IST. T. 288; Beehe v. Mead, 33 N. T. 587. 
 
 ^ Marine Bank of Chicago v. Wright, 48 N. T. 1. 
 
 « Conrad v. Atlantic Ins. Co., 1 Peters, 444; Allen v. Williams, 12 Pick. 297; First 
 Nat. Bank of Cincinnati v. Kelly, 57 N. Y. 34, and cases there cited. 
 
 ' Allen V. Williams, supra; Barry v. Longmore, 12 Adol. & Ellis, 639. See Buckley 
 V. Packard, 20 John. E. 421. 
 
 8 Eeynolds v. Davis, 5 Sandf. 267. 
 
 « Eawles v. Deshler, 28 Hotv. Pr. E. 66; S. C. 3 Keyes, 572. 
 
 M Wood V. Orser, 25 If. Y. 348. See Nagle v. McFeeters, 97 N". Y. 196. 
 
276 Law of Bailments. 
 
 paid. After that is exhausted, he may have recourse to his principal 
 for the balance remaining unpaid.^ 
 
 § 367. A factor is a commercial agent ; and a factor for sale, under 
 advances, is somethmg more than an agent ; he is a conditional pur- 
 chaser for value, with a right to sell the goods, unless the owner on re- 
 quest repays the advances.^ Receiving goods to sell under a del credere 
 commission, guaranteeing his sales, he becomes a purchaser in effect, 
 as soon as the purchase money becomes due on the sales made by him.' 
 
 § 368. The law gives the factor a lien for his advances and reasonable 
 charges, arising or made in the course of his business ; it does not give 
 him a lien to secure debts which accrued prior to the commencement 
 of his agency ; ^ nor to secure a liability incurred by him merely as 
 surety for his principal ; ^ nor to secure the payment of a debt due from 
 any person except the owner of the property.^ It does not suffer him 
 to acquire a lien upon goods, the possession of which he acquires in bad 
 faith or by an illegal act ; ' and it does not give him a lien for expenses 
 incurred upon goods, where he is indebted to his principal, on account 
 of previous sales, in a greater sum ; * nor where the goods come into 
 his hands without authority from the owner.^ 
 
 No lien arises in favor of a factor which is inconsistent with the terms 
 of his contract." ^Vnd after a lien attaches, it is waived by an agree- 
 ment which is inconsistent with a continuance of the lien, or looks to 
 another security or mode of payment ; " or which accepts the personal 
 
 1 Gihon T. Stanton, 9 N. Y. 476. 
 
 2 Parker V. Brancker, 22 Pick. 40; Brown v. McGraw, 14 Peters, 470; Edwards on 
 Bills and Notes, 422-424. See Marfield v. Goodhue, 3 X. Y. 62; Hilton v. Vanderbilt, 
 82 N. Y. 591. 
 
 8 That the contract is original and not within the statute of frauds, see Wolff v. 
 Koppel, 5 Hill, 4.'j8; 2 Denio, 3(iS; Sherwood v. Stone, 14 N. Y. 207; Cartwright \\ 
 Greene, 47 Barb. !); Boston Carpet Co. v. Journeay, .36 N. Y. 384. 
 
 4 Houghton V. Mathews, 3 Bos. & Pull. 485, 488. 
 
 5 Drinkwater v. Goodwin, ("owp. 2.")1 ; Dodge v. Wilson, 10 N. Y. 579. 
 
 « Barry v. Longmore, 12 Adol. & Ellis, 639; Snook v. Davidson, 2 Campb. 218, 597; 
 Brandao v. Barrett, 2 Scott N". R. 113; 1 East, 335. 
 
 'Kinlock v. Cniig, 3 Term, 119; Bruce v. Wait, 3 Mees. & Wels. 15; Bank of 
 Rochester v. Jones, 4 N". Y. 497, .501. See Soltau v. Gerdau, 119 N. Y. 380 ; Kinsey 
 v. Leggett, 71 X. Y. 387; Howland v. Woodruff, 60 X. Y. 75; Collins v. Ralli, 20 Hun, 
 247; S. C. S5 X. Y. 637; Hentz v. Miller, 94 N. Y. 64. 
 
 8 Enoch V. Wehrkamp, 3 Bosw. 3! I8 ; JIcGraf t v. Rugee, 60 Wis. 406 ; Weed v. Adams, 
 37 Conn. 378; Beebe v. Mead, 33 X. Y. 587. 
 
 s Martini v. Coles, 1 M. & S. 140; Buckley v. Packard, 20 John. R. 421; 18 John. 
 R. 24; Bruce v. Wait, supra. 
 
 1° Chase v. Westmore, 5 Maule & Selw. 180; Trust v. Pirsson, 1 Hilton, 293; W. 
 Manufactory t. Huntley, 8 N. H. 441. 
 
 " Bryce v. Brooks, 2(i Wi'ud. 367; Cowell v. Simpson, 16 Ves. 276. 
 
Bailments fok Hiee. 277 
 
 credit of the principal for the balance due ; ^ or which provides a new 
 security for the debt payable on a future day.^ 
 
 § 369. Hike of Things. 
 
 One who hires goods or chattels for use acquires a possessory interest 
 in them during the term of his contract ; * he in fact contracts for, or. 
 purchases the use of the chattels for the period or purposes of the con- 
 tract.^ The price paid is the consideration for the use ; so that the 
 hirer becomes the temporary proprietor of the things bailed. One who 
 hires a flock of sheep for a year acquires the right to the increase of 
 the flock ; ^ and an interest in them, which, for the time being, entitles 
 him to hold them against the owner himself. It is a bailment of mutual 
 interest and reciprocal obligation. 
 
 Where one delivers personal property to another, to be returned after 
 a certain time, at the expiration of the term the same identical property 
 reverts to, and the title is in the bailor ; and he may take it from one 
 having a wrongful possession, without being liable to an action of tres- 
 pass. It is otherwise where the contract of the bailee is in the alterna- 
 tive ; either to return the property bailed or deliver property of the 
 same kind and quality ; or where the contract is to do the latter only. 
 In either of these cases, the obligation on the part of the bailee rests in 
 contract ; and till he actually make the delivery, though the term has 
 expired, the bailor has no vested interest in the property.* Where by 
 the agreement the identical thing is to be returned, the contract 
 amounts to a lease of personal property, at a rent, for a term, after 
 
 1 Dunham v. Pettee, 1 Daly, 112. 
 
 2 Hewison v. Guthrie, 3 Scott, 298. 
 
 5 Putnam v. Wyley, 8 John. R. 432, 435. In this case of Putnam v. Wyley, the 
 plaintiff let some cows and sheep for the term of one year, to be returned at the end 
 of the year with their natural increase ; and the court held that the owner, the lessor, 
 could not maintain trespass against a third person for the taking of the chattels pend- 
 ing the lease or bailment, not having either actual or constructive possession at the 
 time. See ante, § 52. Constructive possession, or a right to immediate possession, is 
 sufBcient ; and the general owner or the party having a lien upon the chattels may 
 maintain the action. Neff v. Thompson, 8 Barb. 213; ante, § 104. The principle 
 asserted in Putnam v. Wyley is cited in Concklin v. Havens (12 John. E. 314) as ap- 
 plicable to the increase of a slave under a devise for life. The general owner holds 
 the constructive possession of personal property. Ash v. Putnam, 1 Hill, 302, 306; 
 Gary v. Houtaling, 1 Hill, 311, 314; Smith v. Hill, 22 Barb. 656. The contract is to 
 be scrutinized and enforced according to its true meaning; the plaintiff cannot main- 
 tain replevin for goods in the hands of a factor having a lien for advances. Wood v. 
 Orser, 25 N. Y. 348. 
 
 * Jones on Bailm. 86; Hickok v. Buck, 22 Vt. 149. 
 
 5 Wood V. Ash, Owen, 138; Putnam v. Wyley, 8 Johns. 432, 435. 
 
 '- Hurd V. West, 7 Cowen E. 752. 
 
278 Law of Bailments. 
 
 •which the property in the thing reverts to the lessor.* In such a case, 
 the bailor naay take or recover back the article bailed as soon as the 
 time of the bailment has expired; but till then his right of property 
 or control over the property is suspended. But where the bailee is to 
 return another article of the same kind, or has an option to return the 
 same or another, the property passes ; it is the case of a sale or ex- 
 change ; the person making the transfer acquires a property in the 
 price, and parts with his title or interest in the specific thing ; on its 
 return or redelivery it is regarded as a payment, not a reversion. And 
 when a payment is to be made in specific articles, the title does not 
 pass until the articles have been separated from others, set apart and 
 actually delivered to the payee, or tendered to him.^ If anythmg re- 
 
 1 1 Cowen E. l'>6, note a. In Seymour v. Brown, 10 Johns. E. 44, it was helrl 
 that the title to wheat was not changed, where it was dehvered on an agreement, tliat 
 the person receiving it should for every five hushels of wheat deliver in exchange one 
 barrel of flour; but that case is overruled. See Norton v. Woodruff, 2 Comst. E. 153; 
 Mallory v. AVillis, 4 N. Y. 76; Smith v. Clark, 21 Wend. 83. Where under a lease of 
 cattle with a farm, the lessee is at liberty to return cattle as good at the end of liis 
 term, the title passes. Carpenter v. Griffen, 9 Paige's Ch. 310. And wliere goods 
 are delivered to another person, to be sold and accounted for, or returned as good as 
 when taken, the transaction amounts to a bailment; it is not a sale, though it author- 
 izes a sale of the goods. Morse v. Stone, 5 Barb. .516. A delivery of material to be 
 manufactured, or of logs to be sawed on shares, transfers a conditional interest — an 
 interest arising and becoming perfect on the fulfillment of the contract by the bailee ; 
 and until the contract is fulfilled the bailor retains the title, and may maintain the 
 action of trover. Pierce v. Schenck, 3 Hill, 28; Sherman v. Way, 58 Barb.. 188. He 
 may rescind the contract on reasonable terms, and take back the property. Clark v. 
 Marsiglia, 1 Denio, 317; Goodwin v. Kirker, 2 Hilton, 401. When materials are 
 delivered conditionally to be manufactured, the condition must be fulfilled before the 
 title will pass. Eightmyer v. Eaymond, 12 Wend. .51. And a condition subsequent, 
 such as a condition in a lease of cattle and a span of horses, that the same shall be 
 kept on a certain farm or place, will be enforced ; the lessee by a removal of them for- 
 feits his term. Otis v. Wood, 3 Wend. 408. Under a bailment or mortgage of per- 
 sonal property, we have seen that the interest of the bailee or mortgagee having a ' 
 right to the possession for a definite time may be sold under an execution. Hall y. 
 Samson, 19 How. Pr. 481; i. e., where the contract gives a right of property, or some- 
 thing more than a mere lien. Buskirk v. Cleveland, 41 Barb. 610. A sale of chattels, 
 for an agreed price, on a condition that the title shall remain in the seller till the price 
 is paid, transfers no interest that can be sold on an execution against the purchaser 
 till the price is paid. Herring v. Hoppock, 12 N. T. 409. And the delivery of a flock 
 of sheep, to be kept by the bailee for their wool, does not vest him with an interest 
 that can be sold on execution until the shearing time. Hasbrouck v. Bouton, 60 
 Barb. 413. The bailee to manufacture and deliver on certain terms has, after per- 
 forming his work, an interest in the property which is the subject of a levy and sale 
 under an execution against him. Weaver v. Darby, 42 Barb. 411. 
 
 2 Barnes v. Graham, 4 Cowen R. 452; Slingerland v. Morse, 8 John E. 477; Co. 
 Litt. 210 b; Foster v. Pettibone,7 X. Y. 433. 
 
Bailments for Hibe. 279 
 
 mains to be done, the delivery is not perfect, and the title does not 
 pass.i 
 
 § 370. An executory sale conveys a chose in action, and an executed 
 sale a chose in possession. In order to determine to which of these two 
 classes a particular agreement belongs, it is a useful and decisive test to 
 consider at whose risk the subject of the contract is left, under its pro- 
 visions.^ In a present sale, or in an exchange of property which amounts 
 to a sale, the risk is with the purchaser after a delivery to him, and 
 sometimes before ; " after a delivery, where that is necessary to complete 
 the contract.^ An agreement to exchange goods does not pass the title 
 until at least a part of the goods have been delivered.^ In a bailment 
 the risk of loss by fire, or from natural causes, remains with the baUor." 
 In a sale it passes with the title ; and where, under the contract, sim- 
 ilar things of the same value and quality are to be returned in lieu of 
 those received, the risk is with the person to whom the goods are de- 
 livered, and he must bear the loss where they are destroyed by wreck, 
 pillage, fire, or other inevitable misfortune.' 
 
 § 371. The hirer's special property for the term depends upon his 
 fulfillment of the contract ; and it ends where he does any act forfeiting 
 his rights under the contract ; as where he mortgages or sells the prop- 
 erty,' or does any act repudiating or cutting off the owner's title.' He 
 
 1 McDonald v. Hewett, 15 John. R. 349; Blossom v. Shotter, 59 Hun, 481; 128 
 N. Y. 679; Pierson v. Hoag, 47 Barb, 243. It is a general rule that upon the sale of 
 chattels title does not pass so long as anything remains to be done by the seller before 
 deliYCry to ascertain the identity, quantity or quality of the article sold, or to put it in 
 the condition which the contract requires. See Terry v. Wheeler, 25 N. T. 520, 525; 
 Evans v. Harris, 19 Barb, 416; Burrows v. Whitaker, 71 N. Y. 291, 295. This rule 
 has reference to the sale of articles to be separated from a larger quantity, and which 
 must be identified before they are susceptible of delivery, and does not apply to a sale 
 of specific property clearly ascertained. Where goods sold are clearly identified, and 
 there remains nothing to be done except to weigh, measiu'e or count them to ascertain 
 the purchase price, the title passes. Groat v. Gile, 51 N. Y. 431 ; Sanger v. Waterbury, 
 116 K Y. 371; Crofoot v. Bennett, 2 N". Y. 258; Kimberly v. Patchin, 19 N. Y. 330; 
 Bradley v. Wheeler, 44 N. Y. 495. 
 
 2 The reverse of the rule stated in the text is often affirmed; to wit, that the risk is 
 with the party holding the title. McConihee v. N. Y. & Erie E. K. Co., 20 N. Y. 493. 
 
 ' Joyce V. Adams, 8 N. Y. 291; Burt v. Butcher, 34 IST. Y. 493; Bradley v. Wheeler, 
 44 N. Y. 495; Terry v. Wheeler, 25 N. Y. 520; Russell v. Carrington, 42 N. Y. 118; 
 Burrows v. Whitaker, 71 >?". Y. 291. 
 
 * Field v. Moore, Hill & Denio, 418. 
 
 5 Chapin v. Potter, 1 Hilton, 366; Pierson v. Eoag, 47 Barb. 243. 
 
 " Millou V. Salisbury, 13 John. R. 211. 
 
 ' Xorton V. Woodruff, 2 N. Y. 153. 
 
 « Sage V. Gile, 8 N. H. 325; Austin v. Dye, 46 jST. Y. 500. 
 
 5 Fiyatt V. The Sullivan Co., 5 Hill, 116; S. C. 7 Hill, 529. 
 
280 Law of Bailments. 
 
 holds under the contract of hiring, as a tenant holds under a lease ; 
 sometimes under the same instrument.^ But the remedies on a termina- 
 tion of the lease are different ; ^ and the grounds on which the term is 
 considered forfeited are not the same in respect to both kinds of prop- 
 erty. Under a lease of real estate, the lessee has a right to assign the 
 premises for the term ; and all covenants or stipulations designed to 
 limit or qualify the right, or to prevent his subletting the property, are 
 construed strictly, so as to give the lessee, under any change of circum- 
 stances, the beneficial enjoyment of his estate or interest in the prem- 
 ises." 
 
 § 372. Where a chattel is hired for a term, of so many days, months 
 or years, the hirer has an interest in the property for the time agreed 
 upon ; and he does not forfeit this interest by any natural and ordinary 
 use of the chattel, though different from that contemplated by the own- 
 er.* The essence of the contract must control ; " if the hiring be general, 
 and for a term, the hirer is entitled to the use of the property, and does 
 not forfeit his right by a partial violation of the contract. The agree- 
 ment resembles a lease of agricultural implements and live-stock, with 
 a farm, for a fixed term ; under which it would be unreasonable to treat 
 the breach of a stipulation in respect to the mode of using the chattels 
 as a forfeiture of one part of the contract, leaving the other in full 
 force.' And yet on a termination of the lease, where there is no express 
 stipulation for a return of the chattels, the owner's remedy is the same 
 as in the case of any other bailment ; and it is agreed that a sale of the 
 implements and stock by the tenant pending the term, or any attempt 
 to sell them, determines the tenancy as to such property, and enables 
 the owner to maintain an action for the things sold or for their conver- 
 sion.' The rent under leases of this kind is held to issue out of the 
 land.= 
 
 Pending the lease or the contract of bailment, the owner has no pres- 
 ent right of property in the chattels, or present right to the possession 
 
 ' Zule V. Zule, 24 Wend. 16; Van Hoozer v. Cory, :)4 Barb. !). 
 
 - Cliamberlaln v. Pratt, 33 Y. T. 47. 
 
 3 Jackson v. Ilarrison, 17 John. R. 66; Roosevelt v. Hopkins, :>'. X. Y. SI; Lynde 
 V. Hough, 27 Barb. 415; Collins v. Hasbrook, 46 N. Y. 157, 337. Sre 5:! X. Y. 85. 
 
 * Lee V. Atkinson & Brook, Yelv. 172; Hartford (. Jackson, 11 X. H. 145. 
 
 '■ Martin v. Parnsworth, 49 N. Y. 555. 
 
 '^ The contract covers both real and personal property. See ^lieklc y, JliU's, 31 Penn. 
 St. 20; Newton v. Wilson, 3 Hen. & il. 470. 
 
 'Zule V. Zule, 24 Wend. 7(); Swift v. Mosely, K) Yt. 20S; Billings v. Tucker, 6 
 Gray, 368; Parrant v. Thompson, 5 B. & A. S'ICk 
 
 8 Pay V. HoUoran, 35 Barb. 2fi5; Marshall s\ Mosely, 21 X. Y. 280; Sutliff T. 
 Atwood, 15 Ohio X. S. 186; 3 Denio, 284, 204; Salmon v. Matthews, 8 M. A- W. 827. 
 
Bailments pok Hieb. 281 
 
 of them.i He has only a reversionary interest ; ^ and he must choose 
 his remedy with a view to his legal rights." 
 
 § 373. The lessor or bailor of goods and chattels is bound to deal 
 fairly with the bailee or lessee ; his obligations are similar in some re- 
 spects to those of a vendor of personal property. If a chattel be hired 
 for a given purpose or for a specified use, the party letting it on hire 
 impUedly engages that it is fit for the use or purpose named ; this is 
 clearly his engagement where for any reason the quality or fitness of 
 the chattels for the use specified is not discernible by an ordinary ob- 
 server. E. g., the keeper of a livery-stable, engaged in the business 
 of letting carriages and horses on hire, is bound to furnish a customer 
 with a carriage and harness reasonably strong, safe and secure for the 
 drive or the journey ; and though not liable for defects that could not 
 be discovered on a careful inspection, it is his duty to use all reasonable 
 means to ascertain their true condition and keep them safe and secure. 
 He is-not bound absolutely for the structure and condition of the con- 
 veyance ; and he is bound for the use of reasonable diligence, by pru- 
 dent examination from time to time, to keep himself ad^ased of the 
 condition of his carriages, harnesses and horses.* Failing in this duty, 
 he is liable to his customer in damages, for injuries arising from dis- 
 ooverable defects.* From the nature of his business, he is under an 
 obligation to furnish a carriage or a horse fit and serviceable for the 
 contemplated use or journey. Hence where a horse becomes disabled 
 on the journey, without any fault on the part of the hirer, the owner 
 
 1 Pntman v. Wyley, 8 John. 432; Gordon v. Harper, 7 Term R. 9. 
 
 2 Lacoste v. Pipkin, 13 Smedes & Marshall E. 589. 
 
 8 Sheldon v. Soper, 14 John. R. 352; 7 Cowen, 670, 680; Mears v. The London & S. 
 Western E. E. Co., 11 Com. B. (N. S.) 854; Ely v. Ehle, 3 N. T. 506. 
 
 1 He impliedly promises that a horse let by him is kind and suitable for the purpose 
 for which he is let and is not vicious. Windle v. Jordan, 75 Me. 149; Eassam v. 
 Jones, 56 Hun, 432; Home v. Meakin, 115 Mass. 326. 
 
 5 Fowler v. Lock, L. E. 10 C. P. 90; 11 English E. 268; Hadleyv. Cross, 34 Vt. 586. 
 Plaintiff hired of the defendant, a livery-stable keeper, a horse, wagon and harness, to 
 go on a journey with his wife, and while on the journey the spring to the snap on the 
 thill to which the harness was attached, broke; and the horse became frightened and 
 overthrew the wagon and injured the plaintiff's wife. On the trial the court in- 
 structed the jury that it was the defendant's duty to furnish the plaintiff with a car- 
 riage and harness reasonably strong, safe and secure for the journey; and that in his 
 business it was his duty, by prudent examination from time to time, to keep them 
 reasonably safe and secure; that if he should suffer them to go out without such ex- 
 amination it would be at his peril, should there be any defects bapable of being dis- 
 covered; and that the defendant was not liable for defects that could not be dis- 
 covered on a careful inspection. The court refused to apply the rule holding the car- 
 rier of passengers liable for hidden defects in their coaches. Ingalls v. Bills, 9 Mete. 1. 
 
282 Law of Bailments. 
 
 is obliged to pay the expenses incurred to procure other means of re- 
 turning, and for medicine, nourishment and care of the horse during 
 his sickness ; whether the horse recovers or dies of the malady.^ 
 
 § 374. It is quite clear that the party letting goods or chattels on 
 hire, with knowledge of their defective state, is liable in damages to the 
 hirer, for injuries resulting from the use of them according to the con- 
 tract.'^ And he is liable upon the principles applicable to a sale, accom- 
 panied by a fraudulent warranty,'' or to an order for goods to be sup- 
 plied or manufactured for a given purpose.* Upon principle a party 
 letting a chattel for a specified use impliedly warrants that it is lit for 
 that use,^ especially where the contract is made in the usual course of 
 his business, or where the hirer has not the means of judging for him- 
 self in respect to its fitness. How far the hirer may recover for per- 
 sonal injuries sustained in the use of the property, depends upon the 
 rule of damages ; and ^A'hile it is quite clear that no recovery can be 
 had for remote or speculative damages, the hirer is entitled to the dam- 
 ages resulting directly and naturally from a breach of the contract.^ 
 
 § 375. Where the hired goods or chattels perish, pending the bail- 
 ment, the consideration for the hire or recompense to be paid for their 
 use terminates with their destruction ; and the better opinion is that 
 the rule holds good where the hiring is for the season or for a specified 
 term.' The use of the chattel being the consideration for the hire to be 
 paid ; the total loss of the property removes all possibility of deriving 
 
 ■' Harrington v. Snyder, .3 Barb. 380; Leach, v. French, 69 Me. 296. 
 
 2 Home v. Meakin, 11.5 Mass. :i20; Kissana v. Jones, 56 Hun, 432. A lender is thus 
 liable, and much more the party letting goods on hire. MacCarthy v. Young, 6 Hurl. 
 & Xor. Ex. 329; Blackamore v. The Bristol E. Co., 8 Ellis & Black. 1035, 1050. But 
 it has been held that a livery-stable keeper who has gratuitously furnished horses and _ 
 carriages to take performers to a charitable entertainment and to bring them back, is 
 not liable to a person, not a performer at the entertainment, injured by the running 
 away of the horses after the performers with whom she had been riding had got out. 
 Siegrist v. Arnot, 86 Mo. 200. 
 
 ' Levy V. Langridge, 4 Mees. & Wels. 337; the action was brought on the contract 
 of sale of a gun, for the use of the plaintiff and his sons, with a warranty that it was 
 made by a certain manufacturer, and was sound and safe ; and it burst, injuring the 
 plaintiff while he was using it. S. P. Sharon v. Mosher, 17 Barb. 518. 
 
 ■■ Hoe V. Sanborn, 21 K. T. 552, and cases there cited. If the bailor fraudulently 
 conceals the unsoundness of a chattel let on hire, the bailee may return it. James 
 V. Neal, 3 T. B. Men. (Ky.) 070; Taylor v. Tillotson, 16 Wend. 494, S. P. 
 
 6 Cook V. N. Y. Floating Dry Dock Co., 1 Hilton, 436; Barrett v. Manuf. Co., 1 
 Sweeny, 545; Kissam v. Jones, 56 Hun, 432. 
 
 8 Williams v. Vartderbilt, 2SN. Y. 217; Cassidy v. Le Fevre, 45 N. T. .562; Griffin 
 V. Colver, 16 N. Y. 489; Academy of Music v. Hackett, 2 Hilton, 217. 
 
 ' Muldrow v. Wilmington, etc., K. R., 13 Rich. (S. C.) 09; so held where a slave 
 died during the term, and also where he became free. Wilkes v. Hughes, 37 Ga. 361. 
 
Bailments foii Hiee. 283 
 
 an income from its use, unless tlie hirer assumes the risk of loss by the 
 terms of his contract. Of itself a hiring does not cast the risk upon 
 the hirer ; hence the bailor cannot recover compensation for the use of 
 personal property after it has been destroyed or rendered unfit for use. 
 From the nature of the contract, it is apparent that the parties con- 
 tracted on the basis of the continued existence of the property.^ 
 
 § 376. The use or service of personal property is sometimes hired 
 where there is no actual bailment ; as where the owner accompanies his 
 chattels and works with them, or sends his servant charged with the 
 custody and care of them.'* The contract is special, and the owner is 
 answerable for the conduct of the servant ; as where a carriage and 
 horses are hired at a livery-stable, and the owner sends his own driver 
 with them. And the rule is the same where the coach belongs to the 
 hirer, and the owner of the horses sends with them his own driver. 
 The custody is not transferred ; and the hirer does not stand in. the 
 relation of a bailee ; the driver is not therefore to be regarded as his serv- 
 ant.' The hirer may indeed become responsible to the full extent of a 
 bailee, by making the driver his own servant or by assuming the actual 
 management of the chattels.^ 
 
 § 377. No action can be based upon an illegal contract of bailment ; 
 but this rule does not prevent the bailor from recovering the goods after 
 the bailment has expired.' 
 
 A contract, hiring carriages and horses for pleasure driving on Sun- 
 day, is illegal, and no compensation for their use can be recovered ; no 
 part of the contract can be enforced. But since the statute prohibiting 
 labor or business on the Lord's day excepts from its operation works 
 of necessity and charity, contracts of hiring made or services rendered 
 on that day must be valid, when they come within the exception.' 
 
 1 Taylor v. Caldwell, 113 Eng. C. K. 824. See also, Dexter v. Norton, 47 N. T. 62; 
 and Carpenter v. Stevens, 12 Wend. 589; and Stewert v. Stone, 127 N. T. 500. 
 
 2 Carter v. Streator, 4 Jones (K. C), L. 62; Hughes v. Boyer, 9 "Watts (Pa.), 556. 
 In this case the owner sent his driver with horses hired for a journey. 
 
 " Laugher v. Pointer, 5 Bam. & Cress. 437; Quarman v. Burnett, 6 Mees. & Wels. 
 499; Samuel v. Wright, 5 Esp. 263; Dean v. Brauthwaite, 5 Esp. 35. 
 
 * Miu^hy V. Kaufman, 20 La. Ann. E. 559. In this case the hirer of teams for the 
 transportation of goods prevailed on the drivers to go beyond the place agreed upon, 
 and was held liable for their loss on the unauthorized trip. 
 
 ' English V. McNair, .34 Ala. 40. The bailor imder a contract rendered void by 
 the statute of frauds may also recover back the chattels after the bailment has ex- 
 pired, or where the bailee refuses to perform on his part. Bartlett v . Wheeler, 44 
 Barb. 162; Jones v. Hay, 52 Barb. 501. 
 
 * McClay v. Lowell, 44 Vt. 116. Traveling on Sunday to visit one's children living 
 away from home is within the exception, and so is traveling on Sunday to take a 
 prisoner to jail under legal process. Fisher v. Kyle, 27 Mich. 454. An 1 so also as to- 
 
284 Law of Bailments. 
 
 ■Where the contract is void because illegal, no action can be based upon 
 the contract ; but it does not follow that the owner is without a remedy 
 for the hirer's negligence or misconduct. He receives the property into 
 his custody, and though the agreement be invalid, it confers a hcense 
 to use the property for the purpose and to the degree specified ; and so 
 where the hirer engages a team to drive to a particular place, and he 
 drives it to another place and in so doing injures the horses, he is guilty 
 of misconduct ; he has exceeded his license ; he is liable for a conver- 
 sion of the team, or for the damages sustained by the owner.^ With- 
 out acquiring any rights under the contract, a party is entitled to pro- 
 tection against the tortious acts or negligent conduct of the other 
 party ; a common carrier, for example.^ 
 
 § 378. Under a hirmg by an infant, the owner cannot enforce the con- 
 tract ; and he may enforce the legal duty to which the law binds him 
 independent of the contract ; in other words, infancy is a good defense 
 to an action based upon the contract, and no defesce to an action of 
 tort.^ Hence where an infant hires a horse to go to a place agreed on, 
 and goes beyond it or goes to another place in a different direction, he 
 is liable in trover for an unlawful conversion of the property.* He has 
 a right to act under the contract, and while he does so the law covers 
 him with its shield ; but where he willfully repudiates and departs from 
 the contract, or drives the horse with great violence and cruelty, he be- 
 comes a wrong-doer, a trespasser ; ^ and though not liable in any form 
 
 the transportation of passengers, mails and express freigtit or tlie carriage of cattle on 
 Sunday. Commonwealth v. Louisville, etc., E. R. Co., 80 Ky. 291; Philadelphia, etc., 
 K. R. Co. V. Lehman, 56 5Id. 209; or the hauling of dead-ripe fruit to market. Wil- 
 kinson t. State, 59 Ind. 416; or shoeing horses employed in transporting the mail. 
 Nelson v. State, 25 Tex. App. 599. 
 
 1 Hall V. Corcoran, 107 Mass. 251; Nodine v. Doherty, 46 Barh. 59; Woodman v. 
 Hubbard, 5 Foster, 67; Martin v. Gloster, 46 Mo. 420; Stewart v. Davis, 31 Ark. 518; 
 Frost V. Plumb, 40 Conn. Ill; contra, Wheldon v. Chappel, 8 1!. I. 230; and Gregg 
 V. Wyman, 4 Cush. 322. 
 
 2 Carroll v. Staten Island R. R. Co., 58 N". T. 120. See Sutton v. Town of Wauwa- 
 tosa, 29 Wis. 21; Phila., Wil. & Bait. R. R. Co. v. Phila. & Havre de Grace Steam 
 Tow boat Co., 23 TJ. S. 209; Mohney v. Cook, 26 Pa. St. 342; Platz v. City of Cohoes, 
 89 N. Y. 219. 
 
 3 Bullock V. Babcock, 3 Wend. 391; Campbell v. Stakes, 2 Wend. 13"; Vasse v. 
 Smith, 6 Cranch, 230; Conway v. Reed, 66 Mo. 346; Morgan v. Cox, 22 Mo. 374; Ray 
 V. Tubbs, 50 Vt. 688; Conklin v. Thompson, 29 Barb. 218; Peterson -s. Haffner, 59 
 Ind. 130; Eodgers v. Lees, 140 Pa. St. 475. 
 
 * Homer v. Thwing, 3 Pick. R. 492; Fish v. Ferris, 5 Duer R. 49; Towne v. Wiley, 
 23 Vt. 350; Freeman v. Boland, 14 R. I. 39; Lucas v. Trumbull, 15 Gray, 307; Green 
 V. Sperry, 10 Vt. 390. 
 
 5 Campbell v. Stakes, 2 Wend. 137; approved in argument in Hartfield v. Roper, 21 
 Wend. 615, 620; Vasse v. Smith, 6 Cranch, 226; Green v. Greenbank, 4 Eng. Com. 
 
Bailments fob Hire. 285 
 
 of action based upon the contract, he is liable in trespass or trover for 
 his tortious act.^ He disaffirms tlie contract by his wrongful act, and 
 the owner becomes entitled to the immediate possession ; after this his 
 liability stands upon general principles.^ The contract of hiring does 
 not afford him any protection ; he is in no better position than a party 
 in possession under a license, limiting the use of the property. 
 
 § 379. The engagements of a party taking a chattel on hire are to put 
 the same to no other use than that for which it is hired ; to use it well ; 
 to take care of it ; to restore it at the time appointed ; to pay the com- 
 pensation or hire ; and in general to observe whatever is prescribed by 
 the contract, or by law, or by custom.^ The hirer's contract is rarely 
 reduced to writing, and it is seldom full and explicit. Being reduced to 
 writing or into a form of express stipulations, it is to be enforced accord- 
 ing to the true sense of the contract ; and not necessarily in the literal 
 sense.* And where a part of the agreement is expressed in writing or 
 in a telegram, following a verbal negotiation, for a specific use of the 
 property, the oral as well as the written part of the contract is to be 
 carried into effect ; and where taken together the stipulations by the 
 bailor limit the use to be made of the property, the hirer is liable for 
 any loss or injury befalling the same, while it is appropriated to a 
 different use.' The oral negotiations become merged in the written 
 agreement when that covers the same subject matter ; " and not when 
 
 Law, 375. To render an infant who has hired a horse liable in an action for trespass, 
 it must appear that he has done some willful and positive act amounting to an elec- 
 tion on his part to disaffirm the contract. A bare neglect to protect the animal from 
 injury and to return it at the time agreed upon is not sufficient. If it appears that lie 
 willfully and intentionally injured the animal, the action will lie; but not if the injury 
 complained of occurred in the act of driving tlirough the infant's unskillfulness, want 
 of knowledge, discretion or judgment. Mere proof of death of the horse from over- 
 driving will not support the action. Moore v. Eastman, 1 Hun, 578; Jennings v. 
 Kundall, 8 Term E. 335; Campbell v. Stakes, 2 "Wend. 137; Eaton v. Hill, 50 N. H. 233. 
 
 1 An action on the case is not the proper remedy. 2 "Wend. 137; 8 N. Y. 430, 441. 
 
 2 Tifft V. Tifft, 4 Denio, 175; "Wallace v. Morss, 5 Hill, 391. The infant's right of 
 control over the property is no greater than that of an adult; and an adult must have 
 authority for what he does with the property of another. Anderson v. Kichols, 5 
 Bosw. 121; S. C. 28N. T. 600. 
 
 " Harrington v. Snyder, 3 Barb. 380; 2 Kent's Comm. 586, 587. See New York v. 
 Mabie, 2 Duer, 401; 44 Barb. 472. 
 
 ^McEvers v. Steamboat Sangamon, 22 Mo. 187; in tliis case the barge hired was 
 destroyed by irresistible force, viz., ice in the river, and the bailee's promise to return 
 the barge in good order was held discharged. 
 
 5 Beach V. Earitan & Del. Bay E. E. Co., 37 N. Y. 457; Buchanan v. Smith, 10 
 Hun, 474; Malone v. Eobinson, 77 Ga. 719; Stewart v. Davis, 31 Ark. 518; Fox v. 
 Totmg, 22 Mo. App. 386; Kennedy v. Ashcraft, 4 Bush (Ky.), 530. 
 
 sEenardv. Sampson, 12 N. T. 561; Wilson v. Deen, 74 N. Y. 531; Long v. New 
 
286 Law op Bailments. 
 
 the writing does not on its face purport to be a complete contract ; ^ or 
 when it is made in part execution of a prior parol contract.- 
 
 § 380. The bailee may bind himself by an express contract for the 
 absolute return of the propertj' in as good condition as it was when he 
 received it. He may assume a greater obligation than the law would 
 impose upon him under the circumstances ; that is to say, the law will 
 enforce against him the very terms of his contract, in their fair mean- 
 ing.'' A promise to return a hired chattel within a given time is not a 
 special contract to insure its safety ; ' and under a hiring of hotel fur- 
 niture for a year, a stipulation by the lessee to surrender the property 
 in as good condition as reasonable use and wear thereof will permit 
 does not bind the lessee to insure the property against loss by fire.^ 
 Under promises like these the bailee assumes no new obligation ; it is 
 not the intention of the parties that he should. He is not therefore 
 liable for a loss or injury to the property without his fault." 
 
 § 381. The hirer of chattels for use is bound to confine himself to the 
 use for which he stipulates. The contract regulates the rights of the 
 parties ; if the hiring be general, the hirer has the use of the chattels 
 for such purposes as they are fitted by nature, and he is responsible only 
 for ordinary neglect.' If the hiring be for a specified time, the hirer 
 acquires an exclusive right to the use of the things hired during the term 
 agreed upon.' If on the contrary there be no time specified in the con- 
 tract, and only a general agreement to pay a fixed sum by the year for 
 the use, the bailment may be terminated at the option of the bailor.' 
 And in both these cases, the contract being general, the hirer is entitled 
 to use the property in the ordinary manner ; that being the implied 
 agreement between the parties.^" 
 
 When a chattel is hired for a definite purpose, or for use in a particu- 
 
 York Cent. K. R. Co., .50 N. T. 1C>; Herman v. Roberts, 119 N. Y. .37; Stewart v. 
 Babbs, 120 Ind. 568; Pegues v. Haden, 76 Texas, 94; Tracy v. Union Iron Works, 29 
 Mo. App. .342. 
 
 1 Potter V. Hopkins, 25 Wend. 417; Jeffery v. Walton, 1 Stak. B. 267. 
 
 2 McCuUoch V. Girard, 4 Wash. C. C. R. 289; Blossom v. Griffin, 13 N. Y. 569. 
 ' Harmony v. Bingham, 12 N". Y. 99; Harvey v. Murray, 136 Mass. 377. 
 
 * Field ^ . Brackett, 56 Maine, 121 ; bailee held not liable for a loss by theft. 
 
 ' Hyland v. Paul, 33 Barb. N". Y. S. R. 241 ; bailee held not liable for a loss by fire. 
 
 OMillonv. Salisbury, 13 John. R. 211; Vaughan v. Webster, 5 Harr. (Del.) 256; 
 Whitehead i . Vanderbilt, 10 Daly, 214. 
 
 ' Angus V. Dickerson, 1 Meigs R. 459. 
 
 8 Hartford v. Jackson, 11 N. H. 145; Putnam v. Wyley, S John. R. 4:12; Hickok v. 
 Buck, 22 Vt. 149. 
 
 a Drake v. Redington, 9 K. H. 243. The rule is the same under a gratuitous loan 
 for an indefinite time. Orser v. Storms, 9 Cov.-. R. (i,s7. 
 
 1" Harrington v. Snyder, 3 Barb. 380; Mc:N^eill3 v. Brooks, 1 Yerg. (Tenn.) 75. 
 
Bailiments roil Hiiti:. 287 
 
 lar manner, as where a horse is hired to lide or drive a certain distance 
 or to a particular place, the hirer is guilty of a conversion -where he 
 goes farther, or uses the chattel in a way not authorized by the contract.^ 
 And in such unauthorized use of the property the hber is liable for all 
 injuries and losses ; at all events, he cannot excuse his failure to return 
 the property, by showing that it was lost while in use by him contrary 
 to the terms of the contract.^ He is thought to be liable for all injuries 
 and losses after such unlicensed use of the property, because without 
 authority he brings it within the operation of destructive agencies ; " and 
 there can be no doubt of his liability on the ground that his use of the 
 property in violation of the agreement is itself an act of conversion/ 
 
 Where the chattel is used in violation of the contract, the bailor, by 
 receiving payment for the unauthorized use, ratifies the act, and cannot 
 afterwards maintain the action of trover.^ But he does not waive his 
 cause of action by taking back the property ; " nor is he left without a 
 remedy, where the property has been wrongfully or negligently injured 
 by the bailee, and he receives the usual hire from him on its return. 
 
 § 382. The use to be made of a hired chattel is sometimes limited by 
 the nature of the property. Thus, one who hires a saddle-horse has no 
 right to use him in a cart, or to carry loads as a beast of burden ; and 
 one who hires a vehicle constructed for the accommodation of two per- 
 sons is not at liberty to overload it with a greater number.' On the 
 same principle, the right to use a chattel terminates on its becoming 
 unfit for further service ; as where a hired horse becomes sick or lame 
 on a journey. The mode of feeding and watering the animal, and the 
 manner of driving him, are also prescribed by the nature of the chattel ; 
 so clearly that the hirer impliedly engages to feed, water and drive the 
 animal with reasonable skill, prudence and discretion.^ 
 
 iRotehv. Hawes, 12 Pick. R. 136; Mayor of Columbus v. Howard, 6 Ga. 213; 
 I Homer v. Thwing, 3 Pick. 492; Lewis v. McAfee, 32 Ga. 465; 5 Mass. 104; Fisher v. 
 I Kyle, 27 Mich. 454; Pay v. Tubbs, 50 Vt. 688; Wentworth v. MeDuffle, 48 N. H. 402; 
 Buchanan v. Smith, 10 Hun, 474; Stewart v. Davis, 31 Ark. 518; ante, §§ 377, 378. 
 
 2 Hooks V. Smith, 18 Ala. 338; Beach v. Raritan & Del. Bay R. R. Co., 37 IST. T. 
 457, 468; Read v. Spaulding, 5 Bosw. 395; .30 N". T. 630. 
 
 3 Read V. Spaulding, 5 Bosw. 395; S. C. SON. T. 630; Harvey v. Epes, 12 Gratt. 
 153. 
 
 * Collins V. Bennett, 46 N. T. 490; Lucas v. Trumbull, 15 Gray, 306. 
 
 5 Rotch V. Hawes, 12 Pick. R. 136; Stewart v. Drake, 46 N". T. 449. 
 
 8 Reynolds v. Shuler, 5 Cowen, 323; Livermore v. N'orthrap, 44 N. Y. 107; Austin 
 v. Miller, 74 N". C. 274. 
 
 ' Harrington v. Snyder, 3 Barb. 380; Thompson v. Harlow, 31 Ga. 348. 
 
 ' Mooser v. Larry, 15 Gray (Mass.), 451; Eastman v. Sanborn, 3 Allen (Mass.), 594; 
 Mayor of Columbus v. Howard, 6 Ga. 213; Wheelock v. Wheelwright, 5 Mass. 104; 
 Thompson v. Harlow, 31 Ga. 348. 
 
288 Law of Bailments. 
 
 § 383. The purpose for which goods or chattels are hired mayor may 
 not enter into the contract ; if it appears from the circumstances, or from 
 the language of the parties, that the hiring was intended for a given 
 purpose, it is to be considered as a part of the contract. On the other 
 hand, an incidental mention of the purpose for which a chattel is hired, 
 or of the place where it is to be used, will not become an essential con- 
 dition of the contract.' In short, the substance of the contract confers 
 and limits the right to use the property, and is to be ascertained as a 
 matter of fact. Under a general hiring, the bailee acquires the right to 
 use the chattel generally, or for any ordinary purpose ; but he does not 
 acquire the right to send it upon a dangerous voyage ; especially where, 
 by the general custom, property thus employed is expressly hired for 
 that purpose, and paid for proportionately on account of the increased 
 risk.^ 
 
 Under a contract of hiring for a term, the breach of a stipulation by 
 the bailee in respect to the place where a chattel is to be used, without 
 injuring or attempting to injure or impair the reversionary interest of the 
 bailor, does not determme the bailment, and is not therefore a conver- 
 sion.^ The act does not repudiate the right or title of the bailor ; and it 
 is well settled that a mere removal of a chattel without right does not 
 amount to a conversion unless the taking or detention is with intent to 
 convert it, or has the effect to change or destroy the chattel.' The re- 
 moval or the misuser renders the bailee liable for any injury or loss 
 arising from his unauthorized act. 
 
 § 384. The hirer's duty to take care of the chattels and use them well 
 is usually implied by law ; it is seldom the subject of an express agree- 
 ment. Under the rule as implied by law, the hirer must exercise the 
 same degree of care and diligence which ajl prudent men, that is, the 
 generality of mankmd, use, in keeping their own goods ; ^ and this rule 
 
 1 Harvey v. Epes, 12 Gratt. 153, 176, 183. This case holds that the use of chattels 
 (slaves) in a different place from that specified in the contract of hiring is not of 
 itself a conversion ; but is sufficient to cast on the hirer the hurden of proving that 
 they did not fall sick and die in consequence of this employment in a different place. 
 
 2 Spencer v. Pitcher, 8 Leigh E. 565. 
 ' Harvey v. Epes, supra. 
 
 * Foulder v. Willoughby, 8 Mees. & Wels. 540: trover for a span of horses put off a 
 ferry-boat, for the plaintiff's misconduct. See Eldridge v. Adams, 54 Barb. 417. See 
 on the point of conversion : Salt Springs Nat. Bank v. Wheeler, 48 X. T. 492; Moore 
 V. McKibbin, 33 Barb. 246; King ads. Geil, 4 N. T. Leg. Obs. 343. Supra, §§ 372, 
 381; care to be used by bailee, a drover of cattle. Maynard v. Buck, 100 Jlass. 40. 
 
 6 Chamberlain v. Cobb, .32 Iowa, 161. If the hirer of a horse exercises such care 
 and discretion in its use, he fulfills the requirements of the lave and will not be liable 
 for injuries from sickness. Buis v. Cook, 60 Mo. 391. But if the horse falls sick on 
 
Bailments foe Hire. 289 
 
 is interpreted with some reference to the circumstances and the nature 
 of the property. A man who hires a horse is bound for the use of 
 reasonable care and skill in feeding and watering him ; ^ and in driving 
 him ; '^ and in keeping or harnessing him at an inn.^ And he is liable 
 for the direct and natural damages resulting from his failure to exercise 
 such care and skill, or from the failure of his servants.* 
 
 The hirer may in some instances render himself liable, even where 
 he acts in good faith and to the best of his ability ; as where he under- 
 takes to prescribe for a hired horse, taken ill on a journey, and from 
 want of skill gives him a medicine that causes his death. He is not 
 answerable for results where he calls in a farrier.^ 
 
 § 385. The time for which chattels are hired, and the use to which 
 they are to be applied, will generally indicate the understanding of the 
 parties in respect to expenses and ordinary repairs. On this point the 
 provisions of the civil code are quite specific and mtaute ; ^ while under 
 the common law, the liabilities of a bailee in this particular do not 
 appear to be very accurately defined. ' When horses or other domestic 
 animals are hired, for a journey, or for a length of time, the natural 
 inference is that the hirer assumes the ordinary expenses of feeding 
 and keeping them in good condition.' A like inference can hardly be 
 made under a hiring of inanimate chattels, so as to charge the hirer 
 with the expenses of keeping them in repair. And it is quite well set- 
 tled, that the hirer of horses, cattle, or carriages is not liable for unusual 
 and extraordinary expenses, that become necessary for the use or the 
 preservation of the property ; as where a horse falls lame or sick on a 
 journey, or where a carriage is broken down, or where a barge is sunken 
 or crushed by the ice, without any fault on the part of the hirer.' 
 
 the journey, and lie continues to drive him to the end of the journey with notice of 
 the fact, he will be liable for the value of the horse in case of its death. Thompson 
 T. Harlow, 31 Ga. 348; Bray v. Mayne, Gow. 1; 5 Eng. C. L. R. 437. 
 
 ■^ Eastman v. Sanborn, 3 Allen, 594. 
 
 ^ Mooers v. Larry, 15 Gray, 451, Graves v. Moses, 13 Minn., 335. 
 
 8 Hall V. Warner, 60 Barb. 19& 
 
 * Sinclair v. Pearson, 7 N". H. 219, and the four last above cited cases ; Thompson 
 V. Harlow, 31 Ga. 348. 
 
 ^ Dean v. Keete, 3 Camph. K. 4. 
 
 8 Code of La. Arts. 2646, 2662, 2664, 2665. ^ 2 Kent's Comm. 586. 
 
 ^ The duty of keeping hired horses in a good and serviceable condition may very 
 well oblige the hirer to keep them properly shod. 
 
 ' Millon V. Salisbury, 13 John. E. 211 ; McEvers v. Steamboat Sangamon, 22 Mo. 187 ; 
 Leach v. French, 69 Me. 389; Harrington v. Snyder, 3 Barb. 380; Reading v. Menham, 
 1 Mood. & Rob. 234. This case holds that under an agreement by the owner to keep 
 a carriage hired by the year in repair, he is bound to repair where the carriage is 
 injured by any cause except the hirer's willful default. 
 
290 Law of Bailments. 
 
 Under the late system of slavery, the hirer was held bound to treat 
 the slave -with a due consideration of his wants ; and the law implied 
 an agreement on the part of the hirer to furnish him with suitable food 
 and shelter ; but it did not require the hirer to pay for medical services 
 and attendance upon him in sickness.^ 
 
 § 386. There are cases where the bailee has not himself been guilty 
 of any negligence and yet has a right of action for an injury to the 
 property agaiiast a third person ; and in these cases the owner should 
 recover against the hirer the amount recovered by him against the third 
 person. There can be little doubt that the ow^rer's recovery should 
 thus be made commensurate with that of his bailee, after a recovery by 
 the latter against the third party. Deducting expenses, the bailee 
 rmder these circumstances recovers and receives the damages in trust 
 for the owner. ^ 
 
 § 387. Under a delivery of goods upon a double or conditional con- 
 tract of hire or sale, the receiver is regarded as a bailee for most pur- 
 poses : e. g., where a man receives goods upon a contract, by which he 
 is to keep them a certain period and to become the owner if he pays for 
 them within that time, and otherwise is to pay for the use of them ; he 
 receives them as a bailee in this sense, that the property m them is not 
 changed till the price is paid ; and if the bailee in the mean time assume to 
 sell them the baUment is ended, and the owner may demand and recover 
 the goods. ^ The contract is not allowed to operate beyond the intention 
 of the parties ; and the receiver of the goods under the agreement is not 
 regarded as a bailee, so that a recovery by him against a trespasser for 
 taking and converting the property will bar a second action by the 
 
 1 The custom of hiring slaves by the week or by the season entered into the contract ; 
 and the hirer assumed the expenses of supplying them with suitable food, as in the 
 ordinary hire of hands upon a farm, without undertaking for their proper treatment 
 in case of sickness. Sims v. King, 18 Ala. R. 230; Leach v. West, 16 Ala. 2-50; Isbel 
 V. Nowell, 4 Gratt. 176; 10 Humph. K. 2(17. 
 
 2 See Bliss v. Schaub, 48 Barb. 330, 342; and Kellogg v. Sweeney, 1 Lansing E. 307; 
 S. C. 40 N. T. 21)1. In Brewster v. Warner, 136 Mass. 57, it was held that where the 
 bailee of a wagon, which was injured while in his possession by the negligence of a 
 third person, has requested the owner to have the wagon repaired and the expenses 
 charged to him, he may recover of the wrong over the damage sustained without 
 having paid the expense of the repairs. 
 
 8 Sargent V. Gile, 8 N. Hamp. E. 325; Herring v. Hoppock, 15 X. Y. 400; Strong 
 V. Taylor, 2 Hill E. 320; Barnett v. Pritchard, 2 Pick. 512; Fairbanks v. Phelps, 22 
 Pick. 535; Dresser Manuf. Co. v. Waterston, 3 Mete. 9; Herring ^. Willard, 2 Sandf. 
 R. 418; Ballard v. Burgett, 40 N. T. 314; Carter v. Kingsman, 103 Mass. 517. Ante, 
 § 340; Harkness v. Russell, 118 U. S. 663; Foreman v. Drake, 08 X. c. 311; Andrews 
 V. Richmond, 34 Hun, 20. 
 
Bailments foe Hire. 291 
 
 vendor. The transaction does not unite the interests of the parties Uke 
 a simple bailment.^ 
 
 An honest purchaser from the party in possession is not Hable to an 
 action until he has had an opportunity to restore the property to the 
 true owner.'^ Purchasing with notice of the defect in the title, he can 
 hardly insist upon the formaUty of a demand before suit.^ Mere pos- 
 session for a special purpose, though following an agreement for the 
 property, does not enable a man to transfer the title.^ And there can 
 be no title to goods gained through a felony.^ 
 
 § 388. Under a bailment of goods by joint owners or by tenants in 
 common, the contract must be fulfilled with a due regard to the relation 
 subsisting between the bailors ; ^ and they are jointly liable on the con- 
 tract. Where two or more persons jointly hire goods or chattels for 
 use, they are jointly liable on the contract ; ' and where one person hires 
 a horse which is delivered on his request to another, and by him driven 
 to death, the hirer driving another horse in company with him, both 
 may be held jointly liable for the injury.' Indeed, the rule is general 
 that where an act is done by the co-operation of several persons, caus- 
 ing an immediate injury, all may be held jointly liable ; both when the 
 act may be characterized as a direct trespass, and when it is the result 
 of negligence by all, working a direct injury.' Some concert of action, 
 or at least co-operation, is necessary to maintain the action of trespass 
 against parties sued as joint trespassers." Concurrence without concert 
 of action in an act of negligence renders the parties liable jointly and 
 severally for the injury." 
 
 ^ Hasbrouck v. Lounsbury, 26 K. Y. 598; Smith v. James, 7 Cow. 328, note 300; 
 12 N. T. 343. 
 
 2 Millspaugh V. Miteliell, 8 Barb. 333; Barrett v. Warren, 3 Hill E. 348; Gillett v. 
 Roberts, 57 N. T. 28. 
 
 s Wooster v. Sherwood, 25 N. T. 278. * Bassett v. Spofford, 45 N. T. 387. 
 
 s Brower v. Peabody, 13 N. T. 121. 
 
 " Aiite, § 56; Davis v. Lottich, 46 N. T. 393; Beecher v. Bennett, 11 Barb. 374. 
 
 7 O'Brien v. Bround, 2 Spears (S. C), 495. 
 
 8 Banfleld v. Whipple, 10 Allen (Mass.), 27. 
 
 ' Bishop V. Ely, 9 John. E. 294 ; Guille v. Swan, 19 John. K, 381 ; Losee r. Buchanan, 
 61 Barb. 88; S. C. 51 K. T. 476; Colegrove v. Harlem & New Haven E. E. Cos., 6 
 Duer, 382, 402; S. C. 20 IS". T. 492. See Williams v. Sheldon, 10 Wend. 654, as to 
 requisite concert to justify an action of trespass against several persons as joint tres- 
 passers. 
 
 1° Obzen v. Schirenburg, 3 Daly, 100. The injured party may sue one or all for an 
 act of tort. Low v. Mumford, 14 John. E. 426. 
 
 " Barrett v. The Third Ave. E. E. Co., 45 N. T. 628; Klander v. McGrath, 35 Perm. 
 St. 128; Hawkes worth V. Thompson, 98 Mass. 77; Pfau v. Williamson, 63 HI. 16, holds 
 contractor liable to employer. 
 
292 Law op Bailments. 
 
 A joint action cannot be maintained against a master and servant for 
 a willful injury done by the latter in driving his master's carriage in his 
 absence ; and the current of authority allows the action against both 
 for an injury caused by the servant's negligence, in the master's ab- 
 sence, in driving his team or in the prosecution of his business ; ^ and 
 the rule has been applied so as to hold a corporation and its servants 
 and agents jointly and severally liable for injuries caused by their neg- 
 ligence in the conduct of its business.''' 
 
 § 389. Liuhilltij in respect to Servants. Under the common law 
 every man is responsible for injuries occasioned by his own personal 
 negligence, and for the negligence of those whom the law denominates 
 his servants, while engaged in the business or work for which he em- 
 ploys them." The general rule is now well settled that the master is 
 liable for a;i the acts of his servant which are within the general scope 
 of his employment, and which are done while engaged in his master's 
 business, and with a view to the furtherance of that business and the 
 master's interests, whether such acts are done negligently, wantonly or 
 even willfully. But if the servant goes outside of his employment and, 
 without regard to his service, acting with malice or in order to effect some 
 purpose of his own, wantonly causes damage to another, the master is 
 not liable.* This is all that is decided by the cases apparently holding 
 that the master is not liable for the unauthorized malicious or willful act 
 of his servant ; or for his tortious act or illegal act exceeding his author- 
 ity.' He is answerable for the servant's misjudgment or error in fact, 
 
 1 Wright V. Wilcox, 19 Wend. )i4L! ; Phelps v. Wait, 30 X. Y. 7S ; Losee v. Buchanan, 
 61 Barb. 86, SS. See Parsons v. Winchell, 5 Cush. 592. 
 
 2 Losee v. Buchanan, supra. See 34 N". T. 30; Suydam v. Moore, 8 Barb. 3.58; I3 
 N. T. 42. 
 
 3 Sammell \. Wright, 5 Esp. 263; Dean v. Brauthwaite, •"> Esp. 3."). The modern 
 cases hold that a master is liable to third persons injured by negligent acts done by 
 his servant in the course of his employment, although the master did not authorize or 
 know of the servant's act or neglect, or even if he disapproved or forbade it. Singer 
 Manuf. Co. V. Eahn, 132 XJ. S. .518; Philadelphia * Reading R. R. Co. v. Derby, .50 U. S. 
 468, 486; Quinn v. Power, 87 N. T. 53."j; Rounds v. Del., Lack. & West. R. R. To., 
 64 N. Y. 129; Ochsenbein v. Shapley, 8.') N". Y. 214; Cook v. Houston Direct Xav. 
 Co., 70 Texas, 3.j8; Stone v. Hills, 4.5 Conn. 44; Higgins v. Watervliet Tump. Co., 
 46 X. Y. 23. 
 
 * Mott V. Consumers' Ice Co., 73 N. Y. 543; Rounds v. Del., Lack. & West. R. E. 
 Co., 64 N. Y. 129; Mars v. Del. & H. Canal Co., 54 Hun, 025; Peck v. New York 
 Cent. & H. R. R. R. Co., 70 N. Y. 587; Cohen v. Dry Dock, etc., R. R. Co., 69 N. Y. 
 170; Poucher v. Blanchard, 86 N. Y. 256, 260. 
 
 'See Eraser v. Freeman, 43 N. Y. 566; Vanderbilt v. Richmond Turnpike Co., 2 
 N. T. 479; Isaacs v. Third Ave. R. E. Co., 47 N. T. 122; Mali v. Lord, 39 N. Y. 381. 
 The test of the master's responsibility for the act of his servant is not whether such 
 
Bailments fok Hire. 293 
 
 and wrongful act thereon, within the scope of his employment ; ' for the 
 servant's want of intelligence and his act of folly arising therefrom ; ''■ 
 and for the servant's failure in duty during his intoxication.' 
 
 The master's liahility for the acts of his servant is placed upon these 
 grounds : first, they are done on his behalf and are therefore his acts ; 
 second, he employs or selects his servant with knowledge of his charac- 
 ter, capacity and skill, and has the right to direct and control his con- 
 duct. The employer is the master, and must answer for the acts or 
 misconduct of the subordinate within the line of his employment.* The 
 rule is perfectly plain and well settled ; and the only difficulty in its 
 application is generally one of fact, namely this, to ascertain the true 
 relation in which the parties stood to each other .^ The, master must 
 answer for his servant's negligence, and for the negligence of one who 
 volunteers to assist him in his labors ; ° as where the servant driving his 
 master's cart entrusts the reins to a stranger riding with him, and an 
 injury results from his careless driving ; ' or where a servant directs 
 another to do an act, within the scope of his employment, and he does 
 it ; like setting fire in brush piled in heaps on a field ready for burning.' 
 § 390. The master is not answerable to third parties for the negli- 
 gence of a servant, while engaged in his own private business or acting 
 beyond the range, course or scope of his employment ; as where a serv- 
 ant drives his master's horse and carriage or cart upon an errand or 
 upon business of his own, without his master's knowledge or consent, 
 and in doing so negligently runs upon or injures the carriage, horses or 
 
 act was done according to the master's instructions, but whether the act was 
 done in the prosecution of the business that the servant was employed by the master 
 to do. Cosgrove y. Ogden, 49 N. Y. 255; Peck v. Kew York Cent. & H. E. K. E. 
 Co., 70 K Y. 587; Lynch v. Metropolitan El. E. E. Co., 90 N". Y. 77, 86; Oehsenbein 
 T. Shapley, 85 N. Y. 214, 220; Clark v. Koehler, 46 Hun, 536. 
 
 ^ Higgins V. Watervliet Turnpike Co., 46 K. Y. 23; Townsend v. New York Cent. 
 & H. E. E. E. Co., 56 N. Y. 295. The mistaken judgment for which the master is 
 held liable must be exercised in the commission of an act within the servant's employ- 
 ment. MoUoy V. New York Cent., etc., E. E. Co., 10 Daly, 453. 
 
 2 Lannen v. The Albany Gas Light Co., 44 K. Y. 459. 
 
 8 Chapman v. N. Y. C. E. E. Co., 33 N. Y. 869; Cleghorn v. New York Cent. & H. 
 E. E. E. Co., 56 N. Y. 44. 
 
 * Blake V. Ferris, 5 N. Y. (1 Seld.)48; Quarman v. Burnett, 6 Mees. & Wels. 497; 
 Eapson V. Cubitt, 9 Mees. & Wels. 709; Hobbitt v. Northwestern E. Co., 4 Wels. 
 Hurlst. & Gordon, 254. 
 
 * Milligan v. Wedge, 12 Adol. & Ellis. 737; Eapson v. Cubitt, supra. 
 
 8 Althorp v. Wolfe, 22 N. Y. 355; negligence in throwing snow and ice from a roof 
 on a passer-by. 
 
 ■^ Booth v. Wister, 7 Carr. & Payne, 66. 
 ' Simons v. Monier, 29 Barb. 419. 
 
:i94 Law of liAiLiiEXT.s. 
 
 person of a third party.^ The master's liability does not rest upon the 
 ground that he has entrusted the servant with the horse and carriage, 
 but on the ground that the servant is acting for the master and within 
 the course of his employment. Hence the master is liable for the 
 negligent act of the servant, in the prosecution of the business en- 
 trusted to him, though done in violation of instructions relating to the 
 manner of doing the work.- The duty of having the work done with 
 proper skill and care includes the active direction of the work ; and the 
 master is in some cases liable precisely because of the agent's failure to 
 follow out and fulfill his instructions with intelligence and discretion.^ 
 He is so liable where his driver, with the intention of rendering him a 
 benefit, drives his omnibus across the road, blockmg the way of a rival 
 line, and causing a collision ; and his liability is not lessened by the 
 fact that his servant had express instructions not to obstruct other 
 omnibuses, and did not observe tliem.^ 
 
 § 391. The master is civilly liable for the unlawful act of his agent 
 or servant, where the act belongs to a class which are expressly author- 
 ized under a given state of facts, and becomes unlawful only because of 
 the existence of a fact which was unknown to the servant ; ^ as where a 
 conductor ejected a passenger from a car, in good faith believing he had 
 not, when in fact he had, paid his fare. The master, being a corporation, 
 must answer for the act, the same as a natural person, in compensatory 
 damages. It being the duty of the conductor to preserve order and 
 protect his passengers from annoyance and injury, his principal is liable 
 for his neglect of that duty, and for the manner in which he discharges 
 it.^ 
 
 1 Sheridan 7. Charlick, 4 Daly, 338; Mitchell v. Crossweller, 13 C. B. 237; Story v. 
 Ashton, L. R. 4 Q. B. 476. See also, McKennie v. McLeod, 10 Bing. 3s.j ; and What- 
 man V. Pearson, L. E. 3 C. P. 422. 
 
 ^ Cosgrove v. Ogden, 49 N. T. 2.55. This action was for negligence in piling liunber, 
 the work being done under the direction of the defendant's foreman. See Southwick 
 V. Estes, 7 Cush. 385 ; Priester v. Angley, 5 Eich. 44. 
 
 = Weed V. Panama E. Co., 17 N. T. 362; Cosgrove v. Ogden, 49 X. Y. 2:,r>. A prin- 
 cipal is liable for his agent' s fraud in doing an authorized act. Farmers & Mechanics' 
 Bank v. Butchers & Drovers' Bank, 14 N. Y. 623; 16 N. T. 125. 
 
 * Bayley v. Manchester, S. & L. Ey. Co., Law Eep. 8 C. P. l-")3; Limpus v. London 
 Gen. Om. Co., 1 Hur. & C. 526; Green v. The London General Om. <;'o., 7 Com. 
 Bench (X S.), 290. 
 
 5 Hamilton v. Third Ave. Eailroad Co., 53 X. Y. 25; Goff v. (4i-eat Northern R. Co., 
 3 E. & E. 672; Townsend v. N. Y. C. R. R. Co., r,i) N. Y. 29.->; Caldwell v. New Jersey 
 Steamboat Co., 47 N. Y. 282. 
 
 6 Pittsburgh, F. W. A C. E. Co. v. Hinds, .53 Penn. St. 512; Flint v. Norwich A- N. 
 Y. Transp. Co., 34 Conn. 554; Putnam v. Broadway tt Seventli A\c R. R. Co., 55 
 N. Y. 108; Higgins v. Watervliet T. Co., 4ii N. Y. 23; Goddard v. Crank Trunk Ey., 
 57 Me. 202; Connnonwealth v. Power, 7 Mete. 590; Nieio v. Clark, 1 Cliif. 145; 
 
Bailments fou Hiee. 295 
 
 The employer may be liable for an act of trespass by his servant ; as 
 in cuttmg timber upon the land of an adjoining owner, when the work 
 is done under the directions of the master or his authorized agent. 
 The act is as truly his as if he cut the timber by his own hand.^ 
 
 § 392. Under a hiring of the services or use of personal property 
 where there is no bailment, the hirer does not assume the custody or 
 care of the chattels, nor the place of master in their employment : ^ as 
 where a person hires a carriage and horses at a livery-stable, and the 
 owner sends with them his own driver, to take care of and drive the 
 team. The owner here, and not hirer, stands m the relation of master, 
 and must answer for the negligence or misconduct of the driver. The 
 rule respondeat superior applies only to the immediate employer, and 
 there cannot be two superiors answerable for the same servant.' 
 
 On the other hand, the hirer of wagons, or carriages and horses, re- 
 ceiving them into his custody to be used by him at his pleasure, becomes 
 a bailee, and is in no sense a servant of the owner.* He is responsible 
 to the owner for the reasonable care of them, and to third persons for 
 any negUgence of his servants in the use of them.^ He is liable to third 
 persons, to the same extent as if he were the actual owner of the vehicles 
 and teams used by him. 
 
 § 393. Carmen carrying on business on their own account do not 
 stand in the relation of servants to merchants employing them to do 
 their carting, at so much a load or at so much a package. The driver 
 on the cart or truck is the servant of the truckman carrymg on that 
 branch of business, and not the servant of the merchant whose goods 
 he is moving ; the merchant is not therefore liable for the negligence of 
 
 Stewart v. Brooklyn & Crosstown K. K. Co., 90 N. T. 588; Croaker v. Chicago & 
 Northwestern Ey. Co., 36 Wis. 657; Bryant v. Rich, 106 Mass. 180; Sherley v. Billings, 
 8 Bush, 147; Chicago, etc., R. R. Co. v. Flexman, 103 111. 546. The ordinary rule of 
 liability of a master for the wrongful act of a servant towards one to whom the master 
 owes no duty does not apply to the act of a servant entrusted with the execution of a 
 contract of a common carrier. Stewart v. Brooklyn & Crosstown R. R. Co., 90 IST. Y. 
 588. 
 
 1 Smith V. Webster, 23 Mich. 298. 
 
 2 Ante, § 376; Laugher v. Pointer, 5 B. & C. 547; Quarman v. Burnett, 6 Mees. & 
 Wels. 508. 
 
 ' Boniface v. Eelyea, 6 Robt. R. 397. An undertaker who hires carriages to attend 
 a funeral is not liable as master for the negligence of one of the drivers. 
 
 * Powels V. Hudson, 36 Eng. L. & E. Rep. 162. 
 
 6 Weyant v. N. T. & Harlem E. Co., 3 Duer, 360; 6 M. & W. 697; 9 M. & W. 709; 
 Schular v. Hudson River R. R. Co., 38 Barb. 653; Wolfe v. Mersereau, 4 Duer, 473; 
 Coulter v. American M. U. Ex. Co., 5 Lansing, 67. If the hirer of a horse by his 
 carelessness allows it to run away to its injury, he is liable to an action. West v. 
 Blackshear, 20 Fla. 457. 
 
200 Law of Bailments. 
 
 the driver on the truck.^ The rule is the same where the truckmJui is 
 employed one day ui each week to deliver provisions sold to customers 
 at retail.^ 
 
 A contractor engaging to do an entire job of work is liable as a 
 master for the negligence of those employed by him in its performance.^ 
 If he engages to furnish materials, and construct or repair a building, 
 he is liable for the negligence of those acting under him as laborers or 
 servants ; ' and he is not liable for the negligence of those employed by 
 and acting under the directions of a sub-contractor for the whole or for 
 a portion of the work ; as where the contractor engages to find mate- 
 rials, and construct and finish a building, and then contracts with a 
 mason to do the mason work, or with a plumber to do the plumbmg, or 
 with a painter to do the painting.^ . The owner of the premises is not 
 liable for negligence in the manner of doing the work, under the con- 
 tract ; and yet where the work or act done under the contract is illegal 
 and wrongful, he is liable to a third person who sustains damages from 
 the douag of that wrong." 
 
 § 394. A general or continuous employment is not necessary to 
 create the relation of master and servant. An employment for one occa- 
 sion, or for a single purpose, will suffice.' ^Vnd the fact that a person 
 in charge of a horse and riding him with the assent of the owner, and 
 
 1 McMullen v. Hoyt, 2 Daly, 271; Deforest v. "Wright, 2 Mich. :M;A; Overton v. Free- 
 man, 8 Eng. Law <fe Eq. 470; 11 (.'. B. 8G7; Martin v. Temperly, 4 Q. B. 298; Butler 
 V. Hunter, 7 Hurlst. & Xor. 826. 
 
 2 "Wood V. Cobb, 13 Allen, 08. Here the rule was applied where the truckman, being 
 sick, got the defendants' servant, with their assent, to drive one team and assist him 
 in delivering fish, and in so doing the servant drove against the plaintiff. 
 
 ^ Blake v. Ferris, 5 S. Y. (1 Seld.) 48; Pack v. Mayor, etc., of N. T., 8 N. Y. 
 (4Seld.) 222; Hexamer v. "Webb, 101 K. Y. .377, 385; Kelly v. Mayor, etc., of X. Y., 
 11 N. Y. 432; Schular v. Harlem River R. E. Co., 38 Barb. 653. 
 
 ^Hllliard v. Richardson, 3 Gray (Mass.), 349; Brown v. Lent, 20 "Vt. ri2',i; Forsyth 
 V. Hooper, 11 Allen, 419; Coomes v. Houghton, 102 Mass. 211. 
 
 5 Eapson v. Cubitt, 9 Mees. & "Wels. 710; Hilliard v. Richardson, 3 Gray, 349; King 
 V. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181, 18.5. 
 
 ^ Ellis V. ShefBeld Gas Consumers' Co., 2 Ellis & Bl. 767. The owner is liable as 
 master, where he employs a man to clean out a drain, and pays him therefor a certain 
 sum. Sadler v. Hemlock, 4 Ellis & Black. 570. 
 
 ' Forsyth v. Hooper, 11 Allen (Mass.), 419. The decision in this case proceeds on 
 the ground that the party doing a job of work, ('. c, hoisting a chime of bells, under 
 a contract, stands in the relation of master to those employed in the work. The rela- 
 tion of master and servant exists where the employer selects the workman, may 
 remove or discharge him for misconduct, and may order not only what work shall be 
 done, but also the mode and manner of performance. Blake v. Ferris, 5 i^. Y. 48; 
 Town of Pierrepont v. Ldvelcss, 72 X. Y. 214, 21.5; Butler v. Townsend, 126 N. Y. 
 105, 109; Hexamer v. "Webb, 101 X. Y. 377, 383, 384; Ham v. Mayor, 70 N. Y. 459, 461. 
 
Bailments foe Hike. 297 
 
 engaged in his business, is in the general employment of a third party, 
 does not exempt the owner from liability for an injury caused by negli- 
 gence in thus riding the horse.^ The party at whose instance a service 
 is rendered or the work done is liable ; because he is the employer, and 
 so responsible for the conduct and management of the business.^ And 
 the rule is not afCected by the circumstance that the servant uses the 
 machinery of a third party and calls in the aid of a bystander ; as in 
 the lowering of a box from the loft of a store, with the aid of a tackle 
 and fall.' 
 
 It is not necessary that the servant should be employed by the 
 master in person, or that he should be under his immediate and personal 
 superintendence, in order to render him liable for injuries caused by 
 the servant's neglect. The owners of a ship are responsible for goods 
 spoiled through the default of the master of the ship, employed by 
 them ; * and a warehouseman is answerable for the acts of a master 
 porter appointed by him and engaged in lowering goods out of his 
 warehouse ; ^ and also for the manner in which the goods are piled as 
 they are received, under liis direction.* And a party not pecuniarily 
 interested in a transaction is liable as a master where he provides the 
 men to do a given work, to the exclusion of others ; as hi unloading 
 vessels at a dock.' 
 
 § 395. An employer is not liable to one of his agents or servants for 
 an injury which he sustains in consequence of the misfeasance or negli- 
 gence of another agent or servant, where both are engaged in the same 
 general business or employment ; a rule which rests upon the ground 
 that each employee on entering the service takes upon himself the ordi- 
 nary risks and dangers attending it, including the negligence of his 
 fellow-servants.^ The rule appUes to the different grades of employees, 
 
 1 Kimball v. Cushman, 103 Mass. 194; Goodman v. Kemiell, 1 M. & P. 241; 3 C. & 
 P. 167. 
 
 ^ Coomes v. Houghton, 102 Mass. 211. In this case a contractor employed to con- 
 struct the walls of a building was held not liable for the negligent act of a laborer 
 who was induced by the owner of the property to go to work upon them, though the 
 contractor accounted with and paid the laborer for his work. 
 
 ' Stevens v. Armstrong, 6 N". T. (2 Seld.) 435. See Johnson v. Netherlands Ameri- 
 can Steam Nar. Co., 132 N". Y. 576; Sanford v. Standard Oil Co., 118 N". T. 571. 
 
 * Boson V. banford, 2 Salk. E. 440; Annett v. Foster, 1 Daly, 502. 
 
 5 Randleson v. Murray, 8 Adolph. & Ellis, 109; Thomas v. Day, 4 Esp. 262; ante, 
 §343. 
 
 6 Murphy v. Coralli, 10 Jur. N. S. 1207; 34 L. J. Exch. 14; 13 W. E. 165; 3 H. & 
 C. 462. 
 
 ' Gibson y. Inglis, 4 Campb. 72. 
 
 8 Coon V. Syracuse & Utica E. E. Co., 5 N. T. (1 Seld.) 492; Parwell t. B. & W. 
 K. Pi. Co., 4 ,Met. 4:^; Priestly v. Fowler, 3 Mees. &. Wels. 1; Wright v. N". T. C. II. 
 
298 Law of Baxlmbnts. 
 
 where some are subject to the direction and control of others, or are 
 engaged in different kinds of work, all tending to accomplish tlie same 
 general inirpose.^ The rule does not apj)ly so as to relieve the em- 
 ployer from liability for his own negligence ; as in continuing to use a 
 defective and dangerous engine, with notice of its condition ; ^ or in con- 
 tinuing to use a dangerous structure or machinery with knowledge of 
 its defects ; ' or in the employment of incompetent or dissipated serv- 
 ants or agents.^ The employer is bound for the use of reasonable 
 care and discretion in the prosecution of his business, including all its 
 separate parts ; and the agent or servant cannot recover where he has 
 been guilty of contributory negligence.^ 
 
 § 396. Acts of nonfeasance by a servant do not bind the principal; 
 the servant's refusal to deliver a chattel on the demand of a stranger 
 is no evidence of a conversion by his master : ' but the servant's refusal 
 under the command of his master is a conversion by the latter.' Non- 
 
 R. Co., 25 N. Y. ."j(;2; Shennan v. Eochester & Syracuse E. E. Co., 17 N". Y. 153, 1.58; 
 Slater v. Jewett, 8.j X. Y. Ul; Hogan v. Smith, 12.j N. Y. 774; Arnold v. Del. & Hud. 
 Canal Co., 125 K Y. 15; CuUen v. Norton, 126 X. Y. 1; Hussey v. Coger, 112 X. Y. 
 014. Two persons cannot be fellow-servants unless tliey are under the control of one 
 master. Kilroy v. Del. & Hud. Canal Co., 121 X'. Y. 22; Sulivan v. Tioga R. E. Co., 
 44 Hun, 304; 112 N. Y. ()4:3; Sanford v. Standard Oil Co., 118 N. Y. 571. 
 
 1 Russell V. Hudson I!. E. R. Co., 17 N. Y. 134, 153; Boldt v. X. Y. C, E. E. Co., 
 18 X. Y. 432; Butler v. Townsend, 126 N. Y. 105, 111; Besel v. New York Cent. & 
 H. E. E. E. Co., 70 N. Y. 171; Crispin v. Babbitt, 81 X". Y. 516; Loughlin v. State of 
 N. Y., 105 X. Y. 150; Slater v. Jewett, 85 X. Y. 61. 
 
 2 Keegan v. Western E. E. Co., 8 X^. Y. (4 Seld.) 175; Kunz v. Stuart, 1 Daly, 431; 
 Cone V. Delaware, L. & W. R. R. Co., 81 X. Y. 206; Ellis v. Xew York, L. E. & W. 
 R. R. Co., 95 X. Y. 546. 
 
 8 Ryan v. Fowler, 24 N. Y. 410; Ormond v. Holland, 96 Eng. Com. Law E., 100; 
 Snow V. Housatonic R. E. Co., 8 Allen, 441; Warner v. Erie R. Co., 39 X. Y. 40S; 
 Coughtry v. Globe Woolen Co., 56 X. Y. 124; Stringham y. Stewart, 100 X. Y. 516. 
 
 * Wright V. X". Y. C. R. Co., 25 X. Y. 562; master's duty in employing servants or 
 agents; Lanning v. X. Y. C:. E. Co., 49 X. Y. 521; Claghorne v. X. Y. C. & H. E. E. 
 E. Co., .56 X. Y. 44; Coppins ». Xew York Cent, ct H. R. E. R. Co., 122 X. Y. 557; 
 ■\Vhittaker v. Del. <fc Hud. Canal Co., 126 X. Y. 544. The rule that the servant takes 
 the risks of the business is subject to the qualification that the master must exercise 
 reasonable care to guard the servant while engaged in his duties from unnecessary 
 hazards, including hazards from negligence of co-employees. Abel v. Del. & Hud. 
 Canal Co., 128 X. Y. 662; Ford v. Lake Shore & M. S. Ry. Co., 124 X. Y. 193; 
 Pantzar v. Tilly Foster Iron Mining Co., 99 X^. Y. 308. 
 
 5 Looman v. Brockway, 3 Robt. 74; 39 X. Y. 408; Spelman v. Fisher Iron Co., 56 
 Barb. 151 ; Brown v. Maxwell, 6 Hill, 592 ; Fitzgerald v. Xew York Cent. & H. R. R. 
 R. Co., 59 Hun, 225; Ryan v. Long Island E. li. Co., 51 Hun, 608. 
 
 ^ Goodwin v. Wertheimer, 99 X. Y. 149; Carey v. Bright, 58 Pa. St. 70; Storm v. 
 Livingston, 6 Johns. E. 44. 
 
 ' Shotwell V. Few, 7 John. E. 302. 
 
Bailments for Hike. ^ 299 
 
 action by the servant on a demand by a stranger, for want of authority, 
 is within the line of his duty ; and a subsequent approval of his conduct 
 in that particular will not render his principal liable as for a conver- 
 sion ; ^ nor will such a refusal render the servant liable for a conver- 
 sion.^ From the nature of his situation, the servant is entitled to some 
 consideration ; and it seems he is not obliged to assume the responsi- 
 bility of deciding on a question of title. A bailee is less favored.' And 
 it is held that a conversion by an agent binds his principal, where he 
 accepts and appropriates the benefits of the tortious act, with knowl- 
 edge of all the facts.* 
 
 § 397. The legal sense of some words is more Umited and specific, 
 and of others it is broader than the popular sense. A man who is hired 
 by the year at a fixed salary, though of full age, holds the legal relation 
 of a servant to his employer ; ^ and the relation is the same where the 
 employee is to occupy a house to be furnished by his employer. The 
 legal relation is the same as it is where the hiring is by the day, by the 
 month or by the piece ; " the relation rests upon the contract ; " and 
 there does not appear to be any distinction under the common law, as 
 enforced in this country, between menial and other servants. 
 
 Under the Code of Louisiana there are three kinds of servants recog- 
 nized : 1. Those who only hire out their service by the day, week, 
 month or year, in consideration of certain wages. 2. Those who en- 
 gage to serve for a fixed time for a certain consideration, and who are 
 therefore considered not as having hired out, but as having sold their 
 services. 3. Apprentices, that is, those who engage to serve any one, 
 in order to learn some art, trade or profession. The first of these 
 classes includes domestics, who receive wages and stay in the house of 
 the person employing them, for his service or that of his family ; such 
 as valets, footmen, cooks, butlers and other house servants. These may 
 leave their employer without assigning any reason, and they may be 
 dismissed in the same arbitrary manner.' Other employees are placed 
 upon a different footing, and their relation to their principal is purely 
 one of contract.* As with us, masters and employers are answerable 
 
 1 Mount V. Derick, 5 Hill, 455. 
 
 2 Mires v. Solebay, 2 Mod. 242; Alexander v. Southey, 5 Barn. & Aid. 247; Thomp- 
 son V. Tbe Sixpenny Savings Bank o£ N, Y., 5 Bosw. 293 309; 6 Bosw. 113. 
 
 s Rogers v. Weir, 34 N. T. 468. 
 
 * Cobb T. Bows, 10 N. T. 335; Olmsted v. Houtaling, 1 Hill, 317. 
 
 6 Woodward v. Washburn, 3 Denio, 369; Hart v. Aldricb, Cowper, 54; Hall v. Hol- 
 lander, 4 Bam. & Cress. 660; Haywood v. Miller, 3 Hill, 90. 
 
 * The employer may maintain an action against a third party for enticing away his 
 servant. Haight v. Badgely, 15 Barb. 499; Campbell v. Cooper, 34 ]Sr. Ilamp. 49. 
 
 ' Code, Arts. 157, 3172, 2718. * Idem, Arts. 2719, 2720, 2721. 
 
300 Law of Bailments. 
 
 for the damage occasioned by their servants and overseers in the 
 exercise of the functions m wliich they are employed ; a responsibility 
 which attaches only when the master might have prevented the act, 
 causing the damage, and has not done it. 
 
 § 398. The servant is responsible to his master for ordinary care and 
 dihgence, and for the exercise of that degree of skill which is requisite 
 to a reasonable performance of the work he undertakes ; an architect 
 employed to build a bridge, on a plan of his own, for a high degree of 
 skill ; 1 a mechanic or artisan for skill in his calling ; ^ and an ordinary 
 servant employed to drive horses, for such skill as may reasonably be 
 expected under the contract of hiring.^ 
 
 § 399. Onus Prohaiidi. It rests with the party alleging a fact, by 
 way of maintaiaing or defending an action, to establish it by evidence ; 
 this is the general rule, and there is no exception in favor of the party 
 letting chattels on hire. If he allege an injury or loss of his property 
 through the negligence of the defendant, a bailee for hire, he is bound to 
 establish the fact by evidence ; it is not ordinarily enough for him to 
 prove an injury or loss while the property was in the hirer's custody; 
 he must also show that it was caused by the negligence of the bailee. 
 His proof must be sufficient to support a verdict, finding the fact of 
 negligence.'' 
 
 A return of a hired horse, injured in such a way as does not ordinarily 
 occur without negligence, reasonably casts upon the hirer the burden of 
 proving how the injury occurred, and that it was not caused by his negli- 
 gence. E. (/., where a horse is hired in a healthy and sound condition, 
 and returned in a foundered and disabled condition, it is justly incum- 
 bent on the hirer to exculpate himself.^ So in many cases proof of the 
 injury, and of the circumstances attending it, raises a presumption of 
 negligence by the bailee.* 
 
 1 Mayor, etc., of Albany v. Cunliff, 2 N. T. 105. Ante, note to § 77. 
 
 2 Duncan v. Blundell, :j Stark. 6; Farnsworth >-. Garrard, 3 Campb. 39; Money- 
 penny v. Ilartland, 1 Carr. & P. Ij.jl.'; 2 id. :!7S. 
 
 ^ Newton v. Pope, 1 Cowen, 109. 
 
 ■• Harrington v. Snyder, 3 Barb. 380. Tbis was a case of hiring, and it holds that 
 the burden of showing negligence rests with the plaintiff; the same rule was held in 
 Newton v. Pope, 1 Cowen, 109; both cases relate to an alleged injury of a horse by 
 carelessness. Runyon v. Caldwell, 7 Humph. P,. 134; Browne v. Joh;ison, 20 Texas, 
 43. Stewart v. Stone, 127 X. Y. .500, ."Of>; Lamb v. Camden, etc., i;. V.. & Transp. 
 Co., 40 N. Y. 271. Proof of a conversion by the defendant sujiorscdc^ the necessity 
 of more specific evidence. Ante, §§ 60, 61. Tlie form of the action bears on the bur- 
 den of proof. Ante, §§ 62, 155-1.J9, .354; 46 N. Y. 271, 278; 109 Mass. 4:,2; 99 Mass. 
 605; Perham v. Coney, 117 Mass. 102. 
 
 5 Collins v. Bennett, 46 N. Y. 490, 494; McDaniel v. Robertson, 26 Vt. 340. 
 
 6 Curtis V. Rochester & S. R. Co., 18 N. Y. 534, 538, 544. The bailor makes a. prima 
 
Bailments foe Hire. 301 
 
 § 400. A total refusal to return the property without assigning any 
 reason therefor is a conversion of it, and dispenses with any further 
 proof ; ^ and where the form of the action requires it, it is proof from 
 which a loss by the defendant's negligence may be inferred.^ The fail- 
 ure to retMTn prima facie proves a loss by the defendant's negligence f 
 and a failure to return a part of the goods, with an allegation that they 
 have been lost by theft accompanied by some proof tending to support it, 
 presents a question of fact for the jury." A return of the property in a 
 damaged condition, without giving any explanation of the fact, under 
 circumstances where he cannot reasonably remain silent, is held to cast 
 upon the hirer the burden of showing that the injury was not caused by 
 his negligence; on the ground that the facts are peculiarly within his 
 knowledge.'' He owes an affirmative duty to return the property un- 
 harmed, unless it has been injured from natural decay or from some 
 accident or other means without fault on his part ; and since injuries 
 from these causes are exceptional, proof of a return of the goods in a 
 damaged condition is reasonably sufficient to put the bailee on his de- 
 fence. 
 
 § 401. There being no antecedent contract on the part of the bailee, 
 his mere omission to return a parcel does not establish a loss by his 
 negligence ; nor does it prove a conversion, where the package (of 
 money) is not found on a search made ; or where bills of exchange are 
 accidentally lost. Plaintifi; must establish prima facie his cause of 
 action ; ^ and he may do this under some circumstances by proving a 
 total failure to return the property. For example, a warehouseman 
 
 facie case when he shows such loss or damage to the chattel as ordinarily does not 
 happen when the care which the law requires in the particular kind of bailment is 
 exercised. Arnot v. Branconier, 14 Mo. Apj). 431. 
 
 1 Bush V. Miller, 13 Barb. 481; Logan v. Mathews, 6 Barr. R. 417; Cumins v. Wood, 
 44 111. 416. See Ouderkirk v. Central Nat. Bank, 119 N. T. 263; Fairfax v. >rew York 
 Cent. & H. K. E. K. Co., 67 N. Y. 11; Canfleld v. Bait. & Ohio R.'R. Co., 93 N. Y. 
 532, 538. 
 
 ' 2 Burnell v. N. T. C. R. E. Co., 45 N. Y. 184, 189; 5 Robt. 404; Clarke v. Spence, 
 10 Watts E. 335; Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275. See Stewart v. 
 Stone, 127 N. Y. 500, 506. 
 
 8 Schwerin v. McKie, 51 IST. Y. 180, 186; Brown v. Waterman, 10 Cush. 117; Can- 
 fieldv. Bait. & O. R. E. Co., 93 N. Y. 5.38; Lichtenheim v. Boston & Prov. E. Co., 11 
 Cush. 70. Having taken due care of the property, the bailee is not liable for a loss by 
 theft. Hard v. Searing, 44 Barb. 472, 488. 
 
 * Logan V. Mathews, 6 Barr. E. 417; Newstadt v. Adams, 5 Duer, 43, 46; Willard v. 
 Bridge, 4 Barb. 361, 367; Van Home v. Kermit, 4 E. D. Smith, 453, 456; Arent v. 
 Squire, 1 Daly, 347; Beekman v. Schonse, 5 Eawle, 189; Clark v. Spencer, 10 Watts, 
 337; Cox v. O'Reilly, 4 Ind. 371; Schwerin v. McKie, 51 ST. Y. 180, 186. 
 
 *Pittock V. Wells, Fargo & Co., 109 Mass. 452; Smith v. First National Bant in 
 Westfield, 99 Mass. 605; Salt Springs National Bank v. Wheeler, 48 K. Y. 492. 
 
302 Law of Bailments. 
 
 failing to deliver goods is bound to show tliat the loss of them occurred 
 without a want of ordinary care or diligence on his part ; but is not, 
 it seems, bound to sliow the precise manner of theloss.^ And a watch- 
 maker failing to return a watch received by him for repairs must show 
 that he used due and reasonable care of the property.^ He must do 
 this where he alleges that the property has been stolen from him. He 
 must support his allegation by proof, and so excuse his failure to ful- 
 fill his contract.'' 
 
 § 402. On tlie commencement of a trial the omis probatidi rests with 
 the party holding tlie affirmative on the issue.* In an action of trover 
 the plaintiff must prove his title and a conversion by the defendant ; 
 and the fact of conversion may be proved in many ways. M g., it may 
 be proved by showing that the defendant hired the goods or chattels 
 in question for use in a particular manner, or on certain terms and 
 conditions ; and that he used and injured or destroyed them, in a dif- 
 ferent manner or in violation of tlie contract of hiring.^ And what- 
 ever be the form of the action, tlie hirer ouglit to be held liable for all 
 damages, and every mischance or accident befalling the goods or chat- 
 tels while thus used without authority. He is not to be considered in 
 any better position than a trespasser, where he uses the hired chattel 
 for a different purpose, or in a different manner, from that agreed 
 upon : it does not lie witli him to say that tlie property was destroyed 
 or injured without any want of care on his part, while he was using it 
 without permission.'' His position does not materially differ from that 
 of a man who hires a horse for a pleasure drive on a Sunday, and 
 uses him in violation of tlie void contract ; and is held liable for a con- 
 version of the property, on the ground that his use of it exceeds his 
 authority.' 
 
 ^ Liclitenheim v. Boston & Prov. R. Co., 11 Cusli. 70; Schwerin v. McKie, 51 N. T. 
 180, 180. See Claflin v. Meyer, IS X. Y. 260; Mills v. Gilbretli, 47 Me. :!iO. 
 
 - Brown v. Waterman, 10 Cush. 117. 
 
 ^ The hirer is under a contract to return the property. Hunt v. Wyman, 100 Mass. 
 198. 
 
 * Wliere the plaintiff charges negligence the burden does not shift, but rests upon 
 the plaintiff to the close of the trial. Stewart v. Stone, liT X. Y. -jDn; Heinemann v. 
 Heard, 02 N. Y. 44R. 
 
 "' Ante, §§ :381-3.S;j; Perham v. Coney, 117 Mass. 102; Malonev. Robinson, 77 Ga. 719. 
 
 6 Beach v. Raritan &, Del. Bay R. R, Co., 37 X. Y. 4.57; f> Bosw. 121, V,:)\ Sarjeant 
 V. Blunt, 18 John. E. 74; Perham v. Coney, 117 Mass, 102; Ross v. Southern Cotton 
 Oil Co., 41 Fed. Rep. I.j2. 
 
 'Hall V. Corcoran, 107 Mass. 2.j1. JSTo effect is given to the hiring as a contract, 
 because it is illegal; as an authority, it relieves the hirer from all liability, while he 
 acts within its terms ; exceeding its terms, he becomes a wrongdoer and liable. Ante, 
 §§ 377, 378, 381-383. 
 
B^UJLilENTS FOR HlKE. 303 
 
 § 403. Accession. The increase of herds or flocks, hu-ed for a term 
 of years, belongs to the person who hires tliem ; he acquires under his 
 contract all the profit, utility and advantages to be derived from them 
 iluiing the term ; he gains his title and interest by virtue of the con- 
 tract, and will not take the increase where, under a fair interpretation, 
 the agreement does not give him the increase ; as where a mare is 
 taken to pasture, in consideration of her service ; ^ or where a slave 
 was hired for the season, and the increase was considered as accruing 
 to the owner ; ^ while under a term for years or for life, the tenant took 
 the issue.' 
 
 The owner of personal property, bailed for hire, cannot always follow 
 and reclaim it, after the term has expired. For example, where the 
 owners of real estate, with buildings thereon, hire a steam engine and 
 boilers on an agreement to surrender them at the end of the term ; and 
 presently affix the same firmly to the freehold, so that they cannot be 
 removed without seriously injuring the building in which they are 
 placed ; and thereupon transfer the premises to a person having no notice 
 of the bailor's claim ; the purchaser takes the property. The bailor's 
 remedy is against the hirer.* As between the parties, the title does not 
 pass, where the chattels can be detached without changing their qual- 
 ities and value.^ 
 
 On the other hand, the owner of real estate is at liberty to diminish 
 the same by suffering the timber to be cut off or the buildings to be 
 detached, and removed in the form of personal property ; and where a 
 mortgagee havuig the right to prevent such removal does not interfere, 
 and the property is removed by the purchaser, in good faith, his title 
 
 1 Wood V. Ash, Owen, 138; Putnam v. Wyley, 8 Jolin. E. 432; Concklin v. Havens, 
 12 John. E. 314; applied here to the increase of a slave held for a term: principle 
 assumed in Pierce v. Page, 28 Vt. 34; and in Bartlett v. Wheeler, 44 Barb. 162; Bel- 
 lows V. Denison, 9 N. H. 293; Hasbrook v. Bouton, 60 Barb. 413. 
 
 2 Allen v. Allen, 2 Penn. E. 166; Code Louisiana, Arts. 536, .527, .539. See principle 
 applied in Hasbrook v. Bouton, 60 Barb. 413. 
 
 ^ Concklm v. Havens, supra; Bohn v. Headley, 7 Har. & John. R. 257; Standiford 
 V. Amoss, 1 Har. & John. E. 520. Under the system of slavery, the hirer was required 
 to take reasonable care of slaves hired by him, and to treat them with a humane sense 
 of duty. Lundsf ord v. Baynham, 10 Humph. E. 267 ; Ewing v. Thompson, 13 Miss. 
 E. 132; Biles v. Holmes, 11 Ind. E. 16. The wool from a flock of sheep belongs to the 
 owner. Groot v. Gile, 51 N. Y. 431. As to the effect of a lease of premises with fix- 
 tures, see Wood v. Beath, 23 Wis. 254. 
 
 * Fryatt v. Sullivan Co., 5 Hill, 116; S. C. 7 Hill, 529; Snediker v. Warring, 12 N. 
 T. 170. See Voorhees v. McGinnis, 48 N. Y. 278, 287; Stillman v. Plenniken, 58 
 Iowa, 450. 
 
 5 Ford V. Cobb, 20 N". Y. 344; Tift v. Horton, 53 N. Y. 377; Sissou v. Hibbard, 75 
 X. Y. 542; Tyson v. Post, 108 N. Y. 217. , 
 
304 Law of Bailments. 
 
 will prevail.^ Cutting off the timber, so as to injure the freehold, is an 
 act of waste ; and it may be prevented by the reversioner or remainder- 
 man.^ And the mnrtgasee of the premises may maintain an action 
 against the mortgagor or against his grantee for the removal of timber 
 or buildings, with knowledge that the security will be thereby injured.' 
 § 404. Termination of the Contract. The contract of hire for use is 
 terminated when it has been fully performed, and in the various ways 
 which interrupt its continuance or prevent its execution. When the 
 time of the bailment has expired, or its object has been accomplished, it 
 is the hirer's duty to restore the things bailed. He cannot retain and 
 use the property beyond the time agreed upon, without rendering him- 
 self liable for all casualties ; * nor after the purpose for which it was 
 hired has been accomplished, without being answerable for all dam- 
 ages ; ^ and yet it can hardly be said that a mere neglect to return, 
 where there is no intention to misappropriate or convert the property, 
 does of itself operate to change the rule of liability.^ Under a general 
 liiring, and in the absence of any special agreement or usage determining 
 the time, the return should be made on the bailor's request or within a 
 reasonable time thereafter.'' In some situations a demand is necessary 
 before a suit can be maintained ; ^ and this is doubtless so in all cases 
 
 1 Wilson V. Maltby, 59 N. Y. ]2i;. 
 
 2 People V. Alberty, 11 Wend. KIO; Thomas v. Crofut, 14 X. Y. 474; McGregor v. 
 Brown, 10 N". Y. 114; McCoy v. Wait, 51 Barb. 22.5; Eobinson v. Kime, 70 N. Y. 147; 
 Bouton V. Thomas, 46 Hun, 0; Code of Civil Trocedure, §§ 1051, l(w2, lU.w. 
 
 8 Van Pelt v. MoGraw, 4 X. Y. 110; Gates v. Joiee, 11 John. E. 136. 
 
 * Wheelock v. Wheelri^ht, 5 Mass. R. 104; Homer v. Thwiug, 3 Pick. E. 492. See 
 ante, § 381. i 
 
 ^ Rotch V. Hawes, 12 Pick. 136; Schenck v. Strong, 1 South. 87. In Wheelock t. 
 Wheelwright, 5 Mass. 104, the court held that trover and not case was the proper action, 
 where a p;irty hired a horse for a drive of four miles and drove him eight and killed 
 him, and it was agreed that the hirer did not drive immoderately or neglect to feed 
 and cover the horse properly. In Homer v. Thwing, 3 Pick. 492, the same rule was 
 held against an infant defendant on similar facts. In Eotch v. Hawes, 12 Pick. 136, 
 on similar facts, i. e., going beyond the place agreed upon, it was adjudged that trover 
 ■would not lie, where the owner accepted pay for the whole distance after the return 
 of the horse. The doctrine of these cases is well settled. Disbrow v. Tenbroeck, 4 
 E. D. Smith, 397; Perham v. Conry, 117 Mass. 102. 
 
 " A refusal to return on demand, after the time agreed upon, is clearly tortious ; and 
 the hirer may be guilty of a larceny where he hires with the intent to appropriate or 
 steal a chattel. Brannan's Case, 1 City II. Eec. 50; and Jeffer's Case, id. S3; Ellis v. 
 People, 21 How. Pr. 356. See People v. Call, 1 Denio, 120; Ei-gina v. Brown, 36 Eng. 
 Law and Eq. 010; 1 Sweeny, 43,3; Hildebrand v. People, 50 X. Y. .394; Smith v. Peo- 
 ple, 53 N. Y. 111. See Penal Code, § 52S. 
 
 ' Cobb v. Wallace, 5 Coldw. 539, involves the bailment of a barge, and rights and 
 duties under the contract. 
 
 >* AVestcott V. Thompson, 18 X. Y. 363,; "Westcott v. Tilton, 1 Duer, 53. 
 
iiAILMENTS FOR HiKE. 305 
 
 of a general hiring, where the usage or circumstances do not prescribe 
 the time of the return. But wliere the hiring is for a specific purpose 
 or time, a failure to return the chattel after the time has expired, or the 
 purpose has been fulfilled, is a breach of the contract ; and for this 
 reasonable damages may be recovered.^ 
 
 § 405. The mode, time and place of the return are often determined 
 by the circumstances. The hirer is under an implied agreement to re- 
 store the chattels, and ordinarily he must return them to the place from 
 which they were taken ; "= or to the bailor at his residence ; ' taking care 
 to deliver them into his actual custody." The place of the return is 
 determined with reference to the nature of the thing to be restored and 
 the relative situation of the parties. Being bound to return the' things 
 bailed within a given time, or directly after the purpose for which he 
 hired them has been answered, the hirer stands in a relation to the bailor 
 analogous to that of a debtor to his creditor ; and where no place for 
 the return has been agreed upon, he is reasonably bound to seek the 
 bailor and ascertain where he will receive the goods. His duty is not 
 distinguishable from that of a debtor, under a promise to make a pay- 
 ment in specific articles ; and it can only be fulfilled by some afiirmative 
 action on his part.*" At the same time, it is a duty that may be modified 
 by the agreement, and by the implied understanding of the parties aris- 
 ing from the nature of the chattels ; ' or from a request relating to the 
 delivery.' 
 
 § 406. It is the hirer's duty to restore the goods or chattels to the 
 owner or to his authorized agent ; a duty so important that the law does 
 not absolve him from it, or suffer him to answer the owner's action for 
 the goods, by showmg that he delivered them to the wrong person by 
 mistake.* The intentional delivery to another party, being unauthorized, 
 
 1 Russell V. Roberts, 3 E. D. Smith, 318. 
 
 " Moson T. Briggs, 16 Mass. R. 453 ; Hnnt v. Wyman, 100 Mass. 198. 
 
 ^ Barns v. Graham, 4 Cowen, 452; so held of a note payable in lumber. 
 
 * Esmay v. Fanning, 9 Barb. 176; Coykendall v. Eaton, 55 Barb. 188, 193. 
 
 ^ Coit V. Houston, 3 John. Cases, 243; Lush t. Druse, 4 Wend. 313; Barns v. Gra- 
 ham, 4 Cow. 452. The contract determines the place of payment. Sheldon v. Skinner, 
 4 Wend. 525, 528; Lobdell v. Hopkins, 5 Cowen, 516; Slingerland v. Morse, 8 John. 
 11. 474; La Farge v. Eickert, 5 Wend. 187. 
 
 « Gilbert v. Danforth, 6 N. T. (2 Seld.), 585; Rice v. Churchill, 2 Denio, 145, hold- 
 ing that the occupation of the maker of a note payable in property or goods bears on 
 and may fix. the place of the payment; Vance v. Bloomer, 20 Wend. 196, and cases 
 there cited ; Cobb v. Wallace, supra. 
 
 ' Wheelock v. Tanner, 39 N. Y. 481. 
 
 ' Esmay v. Fanning, 9 Barb. 176 ; Devereau v . Barclay, 2 Barn. & Aid. 702 ; Packard 
 V. Getman, 4 Wend. 613; Wright v. Ames, 2 Keyes, 221. 
 
 2U 
 
30(i Law of BArLMJSNT.s. 
 
 is treated as a tortious act, because it deprives the owner of his goods ; ' 
 and because a rule so strict is necessary for the protection of property.^ 
 Indeed, the wrongful appropriation or disposition of personal property 
 is often made on a mistake of fact, where the title is in dispute ; and in 
 these cases also, an honest intention is quite consistent with a conyer- 
 sion.* 
 
 An accidental loss of the goods is not a conversion, and does not 
 render the bailee liable for them ; ^ and in like manner injuries to the 
 property, without misconduct on his part, are to be borne by the owner. 
 
 § 407. Where the bailee has been guilty of an act of conversion, a 
 redelivery of the things bailed will not protect him from an action for 
 the damages sustained by his misuse of the property while in his 
 custody.^ The acceptance of the projjerty on its return in a damaged 
 condition, is not a waiver of the bailor's right of action for the dam- 
 ages ; " it is merely a fact which may be proved in mitigation of damages.' 
 Taking back the property, and receiving pay for the use of it contrary 
 to the contract, has been treated as a waiver of the action of trover 
 based on such misuse ; " and it has been held that taking hire for the 
 imauthorized use of the property, where it is destroyed and not returned, 
 does not jpreclude the owner from maintaining an action for the conver- 
 sion.' ^Vnd it is reasonably clear that an action for damages, based on 
 the bailee's negligence, may be maintained for the injury, after the hire 
 has been paid and the chattel taken back.^° 
 
 § 408. A demand is necessary before suit, where the bailee is under 
 an agreement to deliver on demand ; and the circumstances will gener- 
 ally indicate the place where the demand should be made.^^ Being 
 bound generally to return the goods on a day named, or within a given 
 
 1 Spencer v. Blackman, 9 Wend. 167; Syeds v. Hay, 4 T. R. 260. The bailee may 
 recover back the goods. Hudson River R. R. Co. t. Lounsbury, 25 Barb. 597; Hicks 
 V. Cleveland, 4S X. Y. S4; Willard v. Bridge, 4 Barb. 361. 
 
 2 Hoffman v. Carow, 22 Wend. 28.j ; Boyce v. Brockway, 31 X. Y. 490. 
 
 s Everett T. Coffin, 6 Wend. 603; Williams v. Merle, 11 Wend. 80; Groot v. Gile, 
 51 X. Y. 431; Haddix v. Einstman, 14 111. App. 443; Laverty v. Snethen, 68 S. Y. 
 522; Roe v. Campbell, 40 Hun, 49; Colgate v. Pennsylvania Co., 102 N". T. 120, 127. 
 
 * Salt Springs Nat. Bank v. Wheeler, 48 X. Y. 492. 
 
 6 Reynolds v. Sliuler, 5 Cowen R. .323. See Brewster v. Silliman, 38 N. Y. 423, 428. 
 
 6 Murray v. Burling, 10 John. R. 172; Baylies v. Fisher, 7Bing, 158; Gibbs v. Chase, 
 10 Mass. 125; Austin v. Miller, 74 N. C. 274. 
 
 ' Dailey v. Crowley, 5 Lansing, 301. * 
 
 ^ Rotch V. Hawes, 12 Pick. 130. 
 
 ' Disbrow v. Tenbroeck, 3 E. D. Smith, 397. 
 
 1" Fux V. Pruden, 3 Daly, 187. 
 
 11 Lobdell v. Hopkins, 5 Cowen, 514; Farrow v. Bragg, 30 Ala. 261; Dunlap v. 
 Hunting, 2 Denio, 643. 
 
i^ AILMENTS FOR HiBE. 307 
 
 time, the bailee must seek out tlie party to whom they are to be delivered, 
 and ascertain where he will receive them.^ And a tender of the articles 
 at the time and place designated or required by the contract, properly 
 and duly set apart and protected, as it will discharge a debtor, is with- 
 out doubt enough to acquit the bailee of his responsibility for a return 
 of the goods. ^ 
 
 § 409. The contract of bailment is also terminated by the loss or de- 
 struction of the things bailed, without any fault on the part of the 
 bailee ; ^ because being connected with the custody of the things hired, 
 it cannot continue in force after the subject-matter of the contract 
 ceases to exist. On the death of a chattel hired for a year, there is a 
 failure of consideration for the payment of wages or hire from that point 
 of time; and the bailor must be content to recover compensation up to 
 that date."" And the rule is not different where the hirer has agreed 
 to return the chattel at the end of the term ; inasmuch as a total loss 
 of it without fault on his part, discharges him from the duty to restore 
 the property. His agreement to return, does not bind him to insure 
 the property ; ^ and it is not to be interpreted in analogy with the con- 
 tract of a tenant for a term of years, who is held liable for the rent 
 under the strict rules of the common law even after the buildings on 
 the premises are destroyed by fire.^ Allowing the analogy to hold 
 good, the rule is now admitted to be unjust, and it has been changed 
 by statute.'' 
 
 A termination of the bailor's interest in the goods, by a sale or trans- 
 fer pending the contract of bailment, cannot affect the rights of the 
 bailee ; because the bailor can only transfer his reversionary interest ; 
 so that a purchaser from him will simply take his title.* A want of 
 title in the bailor does not of itself defeat the contract of bailment ; that 
 is to say, where the bailee is not called upon or compelled to recognize 
 
 1 Scott V. Crane, 1 Conn. 255; 5 id. 16; 16 Mass. 453; 8 John. 474. 
 
 2 Smith V. Loomis, 1 Conn. 110; Eohinson v. Batchelder, 4 N. H. 46. 
 
 3 For example, a capture of the things bailed by the military forces of the Govern- 
 ment. Watkins T. Eoberts, 26 Ind. 167. 
 
 * Young V. Bruces, 5 Litt. K. 324; Collins v. Woodruff, 4 Eng. R. 463; Cutler v. 
 Powell, 6 Term R. 320 ; Appleby v. Dodd, 8 East R. 300 ; Muldrow v. Wilmington, etc. , 
 R. R. Co., 13 Rich. (S. C. ) 69. 
 
 5 Toung V. Bruces, supra; Harris v. Nichols, 5 Mun. R. 483; George v. Elliot, 2 Hen. 
 & Mun. R. 5. 
 
 6 Harrison v. Murrell, 5 Munroe R. 859; Gates v. Green, 4 Paige Ch. R. 355. See 
 Stewart v. Stone, 127 E". T. 500, 507. 
 
 ' Ch. 345, Laws of N". T. for 1860; Graves v. Berdan, 26 >f. Y. 498, 502. Elements, 
 what is a loss by ? See Fash v. Kavanagh, 24 How. Pr. 347. 
 8 Hodges V. Hurd, 47 HI. 363; Hardy v. Lemons, 36 La. Ann. 146. 
 
3(js Law of Bailments. 
 
 the title paramount.^ On the other hand, a termination of the bailorV 
 title, which puts an end to the bailee's right to the further use of the 
 chattel, will end the bailment ; as where a slave became free in the 
 middle of the year for which he was hired out by his master.^ A sale to 
 the bailee will make him the absolute owner ; but a bailment for hire, 
 with a stipulation that the bailee is to become the owner on certain 
 conditions, will not enable him to transfer the title until those conditions 
 are fulfilled.^ 
 
 § 410. Bailment foe Labor and SEEVirEs. 
 
 In a general sense the hire of labor and services is the essence of 
 every species of bailment, in which a compensation is to be paid for 
 care and attention or labor bestowed upon the things bailed. The hire 
 of custody, where goods are deposited for safe keeping ; the contract of 
 wharfingers, carriers, forwarding and commission merchants, faetfirs 
 and other agents, who receive goods to deliver, carry, keep, forward or 
 sell, are all of this nature, and involve a hiring of services.* The sub- 
 ject is usually divided into two branches : first, locatio operis faciendi^ 
 being the usual contract for labor and services to be bestowed upon the 
 thing bailed ; and, second, Zo'v^/(V) operis ^nercium vehendarum, whicli 
 is a contract relating to the carriage of goods for hire. This second 
 branch embraces the duties of common carriers, and requires to be 
 considered by itself. 
 
 Where cloth is delivered to a tailor to be made up into a suit of clothes, 
 the contract is for the labor and services of the tailor ; this is the ob- 
 ject of the bailment, known as locatio opvrh fuciimdi ; but it is not the 
 whole of his undertaking ; he is not only obliged to perform his work 
 in a workmanlike manner, but, since he is entitled to a reward, either 
 by express bargain or by implication, he must also take ordinary care 
 of the thing bailed to him.^ So, a jeweler who receives a gem to he set 
 or engraved, and a watchmaker with whom a watch is left for repairs, 
 are bound to perform the work skillfully, and keep the articles entrusted 
 to them, with that care and diligence which every man of common pru- 
 dence and capable of governing a family, takes of his own property of a 
 like kind.'' 
 
 1 Cook V. Holt, 48 N. Y. 27."). See Simpson v. 'Wrrnn, 50 111. 222; Parker v. Lom- 
 bard, 100 JIass. 40.5; Sjjooner v. Holmes, 1I12 JIass. .Wo. 
 
 2 Wilkes V. Hughes, 37 Ga. .301; Bibb v. Hunter, 2 Duv. (Ky.) 494. 
 
 3 Austin V. Dye, 40 X. Y. .jO;); Clarke v. .Tack, 7 Watts (Pa.), :!7-5. The bailment 
 remains tmtil it is by the agreement converted into a sale. Dunham v. Lee, 24 Vt. 
 432. * Jones on Bailm. 07 ; Story on Bailm. §§ 421, 422. 
 
 , 5 Jones on Bailm. 00, 02. 
 
 ' 6 2 Kent's Comm. r,88; Clark v. Earnshaw, 1 (;o^y. jq^. P. C. 30. 
 
Bailments poe Hike. 309 
 
 The contract is the same wherever materials are delivered to a work- 
 man or mechanic to be manufactured or made up by him in the course 
 of his business or trade, and then returned to the owner. Where the 
 same thing is not to be returned m its new or manufactured condition, 
 as where silver is delivered to a silversmith on an agreement that he 
 shall return therefor silver plate of equal value, the contract is one of 
 sale and not one of bailment ; it is an exchange of property ; '■ a material 
 pouit, on account of the different liabilities which may arise out of the 
 transaction in the case of a loss of the property, without any neglect 
 on the part of the silversmith. Whether or not the title passes, de- 
 pends upon the terms of the contract. If the product of the identical 
 thing delivered is to be returned in its manufactured condition, it is a 
 bailment, though it be changed in the manufacturing process into an 
 entirely new and different article ; as where corn is delivered to be man- 
 ufactured into whisky ; ^ or logs to be sawed into boards. The process 
 of manufacture does not affect the title.' 
 
 § 411. Contracts to make or to sell. Contracts to furnish materials and 
 construct or manufacture goods or chattels or machines, do not involve 
 a bailment, and they are not sales ; the title does not pass until the ar- 
 ticle is finished and deUvered, and the statute of f ravids does not apply : 
 as in a contract to furnish materials and make a garment or the wood- 
 work of a wagon ; ^ or to manufacture and deliver a certain amount and 
 quality of paper for a given price ; ^ or to construct and deliver a ship 
 or cars for a price agreed upon." The contract is for work and services, 
 and it is the intention of the parties that the title shall pass on the 
 completion and delivery of the property.'' The rule is not different 
 where the employer is to furnish some slight portion of the materials ; 
 the owner of the principal materials acquires the title to the completed 
 article or structure, the lesser materials becoming his by right of acces- 
 sion.' 
 
 1 Norton v. "Woodruff, 2 N. T. 153; 2 Kent's Comm. 589. 
 
 ^ Smith V. James, 7 Cowen, 328. 
 
 3 Pierce v. Sdienclc, 3 Hill K. 28; Smith v. Clark, 21 Wend. 80. 
 
 ^Crookshank v. Burrell, 18 John. E. 58; Evans v. Wood, 15 Abhott Pr. 416. 
 
 6 Parsons v. Loucks, 48 N". T. 17; Spencer v. Cone, 1 Metcalf, 283. 
 
 « McConihee v. N. Y. & Erie K. Co., 20 N. T. 495; Low v. Austin, 20 N. Y. 181; 25 
 Barb. 26. 
 
 ' Seymour V. Montgemery, 1 Keyes, 463; Merrittv. Johnson, 7 John. E. 473. 
 
 8 Merritt v. Johnson, supra; McConihee v. N. Y. & Erie K. Co., 20 N. Y. 495. A 
 shipbuilder who agrees to furnish the framework and build a vessel for another retains 
 the title until the vessel is completed and delivered. (Merritt v. Johnson, 7 John. E. 
 473.) The doctrine held by the English courts Is supposed to involve a slight modifi- 
 cation of this rule, though it is in substance the same. A shipbuilder contracts to 
 Tjuild and complete a ship for his employer, who agrees to pay for her in four install- 
 
310 Law of BAiLirENTS. i 
 
 § 4:V2. In like manner where goods are ordered to be made, the mate- 
 rials remain the property of the maker daring the process of manufacture. 
 
 ments as the work progresses; the first when the keel is laid, the second when at the 
 light plank, and the third and fourth when the ship is launched; hefore the third in- 
 stallment is paid, the ship is measured with the builder's consent with a view to get 
 her registered in the name of the employer, and thereupon the builder signs the usual 
 certificate of her building; the third installment is paid, and the ship is registered in 
 the name of the employer, on his oath that he is the owner ; directly after, the builder 
 commits an act of bankruptcy upon which a commission is subsequently issued and 
 his property conveyed to assignees ; two days after, and before the ship is either com- 
 pleted or launched, the employer, with a crew hired by him, takes possession of her 
 and a rudder and cordage made and jiurchased by the builder for the express purpose 
 of completing the ship; and it is adjudijed that the legal effect of the shipbuilder's 
 having signed the certificate to enable the employer to have the ship registered in his 
 name, is to vest in him the general property in the ship from the date of the registi-y; 
 that the rudder and cordage, made and bought by the builder specifically for the pur- 
 pose of completing the ship, became part of it and vested in the employer; and, finally, 
 that the builder had not so parted with the possession as to defeat his lien for the 
 fourth installment. (Woods v. Russell, 5 Barn, and Aid. E. 042.) The opinion de- 
 livered distinguishes this case from that of Mucklow v. Mangles, where the advances 
 were not regulated by the progress of the work, and the builder was at liberty to de- 
 liver any barge answering the requirements of the contract; and argues that the sign- 
 ing of the certificate of building was a delivery — an act designed to pass the property, 
 so as to enable the employer to swear the title to be in himself; but that it was not 
 such a delivery as to defeat the lien of the builder for the balance due him on the con- 
 tract. (1 Taunt. E. 318.) In this State (Xew York) a contract for the building of a 
 vessel or other thing not yet «i ease, does not vest any property in the party for whom 
 it is agreed to be constructed during the progress of the _work, nor until it is finished 
 and delivered, or at least ready for delivery, and approved by such party. AVidrews v. 
 Durant, 1 Kernan E. .55, and cases there cited. 
 
 If a person contracts with another for a chattel which is not in existence at the 
 time of the contract, though he pays him the whole value in advance, and the other 
 proceeds to execute the order, the buyer actiuires no property in the chattel till it is 
 finished and delivered to him. This is the original doctrine of the common law. 
 (Mucklow V. Mangles, 1 Taunt. E. :;I8; Hinde v. ^Miitehouse, 7 East E. .5.59. This 
 case shows what circumstances will operate to pass the title on a sale by an auctioneer.) 
 The case of ^Mucklow v. Mangles presented this state of facts : Royland, who was a 
 barge-builder, had undertaken to build the barge in question for Pocock; before the 
 work was begun Pocock advanced to Eoyland some money on account, and as it pro- 
 ceeded he paid him more, to the amount of one hundred and ninety pounds in all, being 
 the whole value of the barge; when it was nearly finished Pocock's name was painted 
 on the stern ; Eoyland became a bankrupt, and two days after the barge was completed, 
 and before a commission of bankruptcy had issued, defendant took it on an execution 
 against Eoyland, and afterwards on receiving an indemnity from Pocock delivered it 
 up to him; and a verdict was rendered for plaintiffs, who sued as tin- assignees of the 
 bankrupt Royland. Lord Chief- Justice JIansfield : " The only effect of the payment 
 is, that the bankrupt was under a contract to finish the barge ; that is quite a different 
 thing from a contract of sale; and until the barge was finished, we cannot say it was 
 so far Pocock's property that he could have taken it iiw;iy. It was not finished at the 
 time when Eoyland committed the act of bankruptcy; it was finished only two daya 
 
BAlLilEiiTS FOK HtIIE. 311 
 
 By accepting the order, the maker enters mto an executory contract to 
 make and deliver the article called for ; and the property does not vest 
 
 ■before the execution." Mr. Justice Heath, in delivering his opinion in the case, 
 says : This is the species of contract which in the civil law is described hy the term do 
 ut facias. It comes within the cases which have been held to be executory contracts, 
 and as such not within the statute of frauds, as contracts for the sale of goods. A 
 tradesman often furnishes articles which he is making in pursuance of an order given 
 by one person, and sells them to another. If the first customer has other goods 
 made for him within the stipulated time, he has no right to complain; he could not 
 bring trover against the purchaser for the goods sold. The painting of the name on 
 the stern in this case makes no difference. If the thing be in existence at the time of 
 the order, the property in it passes by the contract, but not so where the subject is to 
 to made. (1 Taunt. E. 318.) 
 
 This decision, which is in harmony with the law as held in this State, is, perhaps, 
 partially modified by the subsequent cases decided in the English courts. {Woods v. 
 Eussell, 5 Barn. & Aid. E. 942; Carruthers v. Payne, 5 Bing. R. 277; 7 John. E. 
 473.) In Carruthers v. Payne, a chariot was built to plaintiif's order and paid for by 
 him ; when finished in other respects, plaintiff ordered a front seat to be added, but 
 the builder being slow in making this addition, plaintiff sent for the chariot repeatedly, 
 and the builder promised to deliver it. Plaintiff being afterwards dissatisfied, ordered 
 the chariot to be sold; and while it was, according to the custom of the trade, stand- 
 ing in the builder's warehouse for that purpose, the front seat not having been added, 
 the builder became bankrupt, and his assignee seized the chariot ; more than three 
 mouths afterwards, plaintiff commenced this action ; and it was held, first, that the 
 plaintiff had sufficient property to maintain trover for the chariot; and secondly, that 
 it did not pass to the assignee as a part of the bankrapt's assigned property (.5 Bing. 
 R. 277; see 1 Kernan E. So). Chief- Justice Best, in the opinion delivered by him, 
 says : If a case, precisely the same as Mucklow v. Mangles, were to occur again, it 
 might require further consideration; and Mr. Justice Paek adds: I do not say that I 
 should agree with the decision in Mucklow v. Mangles, if the case were to occur again. 
 It is to be observed, however, that the case in which these observations were made 
 did not involve precisely the same question as that presented in the case here criticised ; 
 and in Woods v. Eiissell, the person for whom the ship was built was not only permit- 
 ted to register her in his name as his own property, but it was actually built under a 
 superintendent appointed by him (5 Bam. & Aid. E. 94.5) ; and he did, also, with the 
 consent of the builder, exercise other acts of ownership over the ship; such as might 
 authorize a jury to find the fact of a delivery for the purpose of passin;; the title, 
 though they might not be sufficient to show such a delivery as would defeat the build- 
 er's lien. 
 
 The intent of the parties as declared in the contract must prevail ; and where the 
 legal effect of the contract and payments made under it can operate to transfer the 
 title in the vessel to the employer as fast as the work goes on, equity certainly favors 
 that construction; and the English courts do recently interpret the provision for pay- 
 ment by installments at successive stages in the work as equivalent to an express 
 understanding that on such payments the general property in the vessel shall vest in 
 the employer or purchaser. Woods v. Eussell, 5 B. & Aid. 942; Clarke v. Spence, 4 
 A. & E. 448; Eead v. Fairbanks, 13 C. B. 692; Atkinson v. Bell, 8 B. & C. 277, 282; 
 Laidler v. Burlinson, 2 M. & W. 602; Wood v. Bell, 5 E. <fe B. 772; 6 E. & B. 35.5; 25 
 li. J. Q. B. 321. The rule as enforced with us vests the property in the party for 
 
312 Law of Bailments. 
 
 in the party ordering it, until it is delivered or tendered to him.^ Hence 
 a subsequent sale and delivery of the article by the maker to a third 
 person will vest the property in him.^ And hence where an order for a 
 specific kind of goods is given, to be selected and sent by the seller, the 
 title does not pass where a different article is sent, untU the same is 
 accepted." To convert a verbal order, when acted upon, into a sale, the 
 goods must be selected or accepted by the purchaser ; * he must, under 
 the statute of frauds, do some act evincmg an intention to accept the 
 goods. ^ Keeping the goods, after a reasonable opportunity to examine 
 them, is evidence of an acceptance." 
 
 The distinction between a present sale of goods or chattels, and an 
 executory agreement to manufacture and deliver a certam kind of mer- 
 chandise or chattels of a given description, is well understood, but not 
 very sharply defined. The statute of frauds applies to sales exceeding 
 fifty dollars in value ; but does not apply to an executory agreement for 
 the manufacture of a chattel or of goods made under an order.' It ap- 
 plies to a contract for wheat, to be threshed and delivered ; » or flour to 
 be ground ; or standing trees to be cut and delivered ; ' or timber to be 
 slit and dressed in a particular manner.^" It is a sale when the work is 
 to be done for the seller, in order to prepare the property for delivery 
 under tlie contract ; and it is an agreement for work and services when 
 the tiling or chattel bargained for is to be made or brought into exist- 
 ence." 
 
 whom the ship is built, on its delivery in a finished condition. Andrews v. Durant, 
 11 N". Y. :J5; 14 X. X. 611; 20 N. Y. 181, i'Xy, 1 Keyes, 40:;. 
 
 I Comfort V. Kiersted, 26 Barb. 472; Ilalterline v. Eice, 02 Barb. 593. 
 
 ^ Atkinson v. Bell, 8 Barn & Cress. 277; Grafton v. Armitage, 2 C. B. 300; Burt v. 
 Butcher, 34 X. Y. 493. 
 
 8Ealph V. Stuart, 4 E. D. Smith, 027; Downer v. Thompson, 6 Hill, 208; 2 Hill, 
 238; Howard v. Hoey, 23 Wend. 3.'jO. 
 
 ^Rodgers v. Phillips, 40 N. Y. 519; Maxwell v. Brown, 39 Jlaine, OS; Frostburg 
 M. Co. V. New Eng. Glass Co., 9 Cush. 115; Allard v. Greasert, 61 N. Y. 1; Pierson 
 V. Crooks, 115 N. Y. 530; Pope v. Allis, 115 U. S. .363. 
 
 5 Caulkins v. Hellman, 47 N. Y. 440; Stone v. Browning, 68 X. Y. 50S; Cooke v. 
 Millard, 65 X. Y. 352. 
 
 " Dutchess Co. v. Harding, 49 X. Y. 321 ; Konitzky v. Meyer, 40 X. Y. 571; Pierson 
 V. Crooks, 115 X. Y. 530. 
 
 'Sewal V. Fitch, 8 Cowen, 215; Parsons v. Loncks, 4S X. Y. 17; Deal v. Maxwell, 
 51 N. Y. 652; Warren Chemical & Manfg. (.'o. v. Holbrook, 118 X. Y. 5s(i. 
 
 ^ Downs V. Ross, 23 Wend. 270. 
 
 9 Smith V. X. Y. C. R. R. Co., 4 Abbott C:t. of App. Dec. 262; 4 Keyes, 180; Smith 
 V. Surman, 9 B. & C. 568. 
 
 w Cooke T. Millard, 5 Lansing, 243; S. C. 65 X. Y. 352. 
 
 II Courtright v. Stewart, 19 Barb. 456; Stephens v. Santee, 51 Barb. 532, 545; Web- 
 sterv. Zieilly, 52 Barb. 482; Bates v. Coster, 1 Hun, 400; Cooke v. Millard, 65 X.Y. 352. 
 
Bailments for Hike. 313 
 
 The present form of the statute in England and in some oi the States 
 has been adopted for the purpose of making it apply to executory sales 
 of goods to be made, procured or prepared for delivery ; and it applies 
 by judicial interpretation where the contract is such that it will result 
 in the transfer of a chattel.^ 
 
 Under the old statute, still existing in most of our States, contracts 
 for the manufacture of a special kind of goods or wares, or for the con- 
 struction of chattels, machines or vehicles of a specified character, style 
 or dimensions, are not within the statute ; as where a paper-maker 
 agreed to manufacture and deliver so many thousand pounds of book 
 paper, of a specified quality ; '^ or where a pump was ordered to be made 
 in a peculiar way ; " or where a certain quantity of malleable hoe shanks 
 were ordered, to be made according to patterns left with contractor ; * 
 or where a monument, existing in the form of separate blocks of marble, 
 was ordered to be finished, lettered and set up ; ' or where a chariot or 
 carriage is ordered of a given kind ; ^ or where an engine or boiler is or- 
 dered to be constructed for a given purpose.' In England and in some 
 of our States, an order given to a manufacturer for a certain quantity of 
 goods which he is habitually manufacturing and keeps on hand to sup- 
 ply orders, is treated as creating a contract of sale ; " with this qualifica- 
 tion, that where the order calls for the manufacturer's own labor and 
 skill in the production of the goods, or for a peculiar article unfitted for 
 the general market, or for a large quantity of an article having special 
 adaptations, it is to be treated as creating a contract for work and labor.' 
 § 413. An executory contract for the sale of specific personal property 
 is within the statute of frauds ; " and it does not pass the title." Ordi- 
 
 ■■ Leev. Griffin, 20 L. J. Q. B. 252; 1 Ellis, B. & S. 272 : action by a dentist to 
 recover for two sets of artificial teeth made for a lady — a case clearly not within the 
 •original statute. See Grover v. Buck, 3 M. & S. ITS; and Towers v. Osborne, 
 1 Strange, 506. 
 
 2 Parsons v. Loucks, 48 N. Y. 17; Deal v. Maxwell, 51 N. Y. 652. 
 
 ^ Parker v. Schenck, 28 Barb. .38. 
 
 * Hight V. Ripley, 19 Maine, 139. 
 
 ^ Mead v. Case, 33 Barb. 202. The only doubt about this case is whether the court 
 correctly applied the rule to the facts. See review of this and other 'cases above cited 
 in Cooke v. Millard, 65 N. Y. 352-363. 
 
 8 Towers v. Osborne, 1 Strange, 506; Mixer v. Howell, 21 Pick. 206. 
 
 ' See !Neaffie v. Hart, 4 Lansing, 4, and cases there cited, for the nature of the con- 
 tract. 
 
 8 Gardner v. Joy, 9 Met. 179; Atwater v. Hough, 29 Conn. 508; Lamb v. Crofts, 12 
 Met. 3.56. 
 
 ' Passaic Manuf . Co. v. Hoffman, 3 Daly, 495 ; Allen v. Jarvis, 20 Conn. 38. 
 
 10 Jackson v. Covert, 5 Wend. 139; Rondeau v. Wyatt, 2 H. Black, 63; Cooper v. 
 Elston, 7 Term R. 14. " Burt v. Dutcher, 34 N. Y. 493. 
 
314: Law of Bailments. 
 
 narily the title passes on the performance or fulfillment of the contract ; 
 that is to say, the title passes by force of the contract as soon as the 
 terms of the sale are complied with. A valid present sale on a credit 
 passes the title at once ; ^ and a like sale for cash passes the title on pay- 
 ment of the purchase money." The title does not pass on a sale of 
 goods, where something remains to be done by the seller to ascer- 
 tain their identity, quantity or quality, or to put them in proper condi- 
 tion for delivery : the goods sold must be designated, ascertained, iden- 
 tified ; " selected or weighed.* But even here the intent of the parties 
 must prevail ; and the title will pass without any separation of the 
 goods sold from a larger mass, where the price is paid and the trans- 
 action evinces an intention to pass the title. ^ 
 
 § 414. Title under a BdUiiient for Seri-iees. A delivery of materials 
 to be manufactured and returned does not operate upon the title ; but 
 a delivery of goods or materials in exchange for other things does trans- 
 fer the title. The owner of some wheat delivers it to a miller, who 
 receives and places it in a common bin with other wheat purchased by 
 him on his own account ; the delivery made on an agreement by the 
 miller that for every four bushels and fifty-five pounds of wheat 
 received, he will deliver to the owner of the wheat one barrel of fine 
 flour warranted to bear inspection, amounts to an exchange or sale of 
 the wheat for a price to be paid in flour.^ The same rule holds where 
 the miller agrees to take so much wheat and (jlee so much flour therefor, 
 without any promise that the flour shall be manufactured from the 
 
 1 Dox T. Dey, 3 ATentl. 356. 
 
 2 Olyphant v. Baker, 5 Denio, 370 ; Lansing v. Turner, 2 John. 13 ; Terrf v. 
 Wheeler, 25 N. Y. 52(J; Cm-tis v. Prinderville, 53 Barb. ISO. 
 
 2 Field V. Moore, Hill & Denio, 418; Rapelye v. Mackie, 6 Cowen, 2-50; Stevens v. 
 Eno, 10 Barb. 95. See Blossom v. Shotter, 59 Hun, 4S1; 128 X. Y. 070. This rule 
 has reference to a sale, not of specific property clearly ascertained, but of such as is 
 to be separated from a lar.LjiT quantity, and is necessary to be identified before it is 
 susceptible of delivery. The rale or principle does not apply where the number of 
 the particular articles sold is to be ascertained for the sole purpose of determining the 
 total value thereof at specified rates or a designated fixed price. Groat v. Gile, 51 
 W. Y. 431; Sangef V. Waterbury, 116 N. Y. 371 ; Burrows v. Whitaker, 71 X. Y. 201. 
 
 *Keelerv. Vandevere, 5 Lans. 313; Joyce v. Adams, s X. Y^ 291. See Howe v. 
 Carpenter, 53 Barb. 382; Russell v. NichoU, 3 Wend. 112; Fitch & Lozee v. Beach, 15 
 Wend. 221; Ward v. Shaw, 7 Wend. 404; Cutwater v. Dodge, 7 Cow. 850. 
 
 ^Kimberlyv. Patchin, 19 X. Y. 33); Russell v. Carrington, 42 X. Y. 118. See 
 Burrows v. Whitaker, 71 X. Y. 291; Sanger v. Waterbury, 116 X. Y. 371; Andrews 
 V. Richmond, 34 Hun, 20, 24. 
 
 8 Smith V. Clark, 21 Wend. 83. See Andrews v. Richmond, 34 Hun, 20, 23 ; Ledyard 
 V. Hibbard, 48 Mich. 474; Rice v. Xixon, 97 Ind. 07; Carlisle v. Wallace, 12 Ind. 252; 
 Ashby V. West, 3 Ind. 170. 
 
Bailments foe Hiee. 315 
 
 same wheat.* But an agreement to take wheat and manufacture and 
 return it in the form of flour is a contract of another kind ; it is a bail- 
 ment.^ It is a sale when the receiver of the material is only hound to 
 return a manufactured article of equal value ; and it is a bailment when 
 the same thing is to be returned in its new or manufactured form.* 
 
 § 415. Our courts have had frequent occasion to draw this line of dis- 
 crimination between a sale and a bailment. It has been frequently 
 done with reference to contracts for domestic animals, cattle or sheep 
 used as stock upon a farm. A delivery on hire, on an agreement that 
 the same chattels are to be returned at a future day, does not pass the 
 title ; while a delivery on an agreement that the same or like cattle or 
 sheep of equal value shall be delivered to the owner amounts to a sale, 
 because it gives the lessee the option of treating it as a sale ; so that 
 pending the agreement the original owner cannot assert any title to the 
 chattels covered by the contract.* The terms of the letting control the 
 question of title : if the hirer can satisfy the terms of his agreement by 
 returning at the end of the term the same number of cattle or sheep of 
 equal value, the contract operates as a sale.^ And as such it must be 
 made in writing, where the value of the property exceeds fifty dollars, 
 or where the contract is not to be performed within one year." 
 
 § 416. A delivery of materials to be manufactured on shares creates 
 a bailment, and on a fulfillment of the contract operates as a transfer 
 of the share coming to the bailee.' The bailee earns his share by per- 
 forming the contract on his part, and he remains a mere bailee untU he 
 fulfills the contract.^ The relation of the parties is similar to that 
 which arises where one man cultivates the land of another on an agree- 
 ment that the crops raised shall be divided between them in certain 
 proportions ; the parties become tenants in common of the crops," with 
 a right to have the same divided according to the contract.*" The de- 
 livery of milk to a cheese factory, to be converted mto and returned in 
 
 1 Korton v. "Woodruff, 2 N. T. 153. ^ Mallory v. Willis, 4 K. T. 76. 
 
 8 Foster v. Pettibone, 7 N". T. 4.33. * Hurd v. West, 7 Cowen, 752. 
 
 « Wilson V. Finney, 13 Jolin. R. 358; Carpenter v. Griffin, 9 Paige Cli. 310. 
 
 «Bartlettv. Wheeler, 44 Barb. 162; Wier v. Hill, 2 Lansing, 278, a thriftless bar- 
 gain; Lockwood V. Barnes, 3 Hill, 128, showing some want of foresight. 
 
 ' Pierce v. Schenck, 3 Hill, 28; post, § 447. 
 
 8 Barker v. Roberts, 8 Greenl. 101 ; PJghtmyer v. Raymond, 12 Wend. 51 ; Tripp v. 
 Riley, 15 Barb. .333; Hyde v. Cookson, 21 Barb. 92. ' In this case in a suit by the 
 owner for a conversion after considerable work had been done in the process of manu- 
 facture, the defendant the bailee was allowed to diminish the recovery pro tanto. 
 
 ' Channon v. Lusk, 2 Lansing, 211, 216. 
 
 " Faber v. Shattuck. ■22 Barb. 568. 
 
olG Law of L.vilments. 
 
 the form of cheese, is a baihuent where the factory is owned and oper- 
 ated by a party on his own account, as a distinct business ; and it is a 
 special contract wliere the factory is operated on account of the persons 
 deUvering their milk to be manufactured, each person to receive his 
 proportion of the cheese. Before any division is made the parties own 
 the cheese as tenants in common ; and though not partners, they are 
 jointly liable on a contract of sale made by their agent or committee.^ 
 
 A tenancy in common of x^ersonal property may, it seems, arise from 
 accident or casualty ; as where firewood belonging to different parties 
 is swept away and scattered by a freshet, and afterwards gathered by 
 one of them.^ It more often arises from the act or contract of the 
 parties ; as where they make a joint purchase of goods, or where one 
 ■delivers to another cattle or swine to fatten on shares. The relation 
 being once established, each party has the usual remedy for a violation 
 of his right of property.'' 
 
 § 417. Our decisions furnish the most reliable illustrations of the rules 
 of law, as well as the most apt and felicitous. The owner of a quuntity 
 of black salts delivers them to a manufacturer on an agreement that 
 he will work them into pearl-lashes and redeliver them to the owner in 
 casks ready for the market at the manufactory ; the salts are kept sep- 
 arate from the others, and the substance or chemical properties (jf the 
 alkali are not materially changed in the process of the manufacture ; 
 when the work is finished, the casks containing the pearl-lashes are 
 rolled into the highway, separated and covered as the property of the 
 person furnishing the salts ; the title here is not changed, and the 
 delivery into the street is tantamount to a delivery to the owner.* 
 There is nothing in the process to work a change in the title ; as there 
 is not in the process of converting wood into coal ; ■' or timber into 
 boards ; " or grain into whisky.' 
 
 The delivery of hides to be tanned and manufactured into leather, 
 and afterward returned and sold, creates a bailment; even where 
 the manufacturer is entitled to the proceeds of the sale, after 
 
 1 Hawley v. Keeler, 02 Barb. 231; "Wilber v. Sisson, .".:; Barb. 258, 264. The factory 
 may now be organized as a corporation. Durst ¥. Burton, 2 Lansing, 137. As to the 
 effect of the destruction of the factory by flre before the time contemplated for the 
 termination of the bailment, see Stewart v. Stone, 127 N. Y. 500. 
 
 - Moore v. Erie Railway Co., 7 Lansing, 39. 
 
 » Sheldon v. Skinner, -t Wend. .~)2.-); Fobes v. Shattuck, 22 Barb. 508; Nowlen v. 
 Colt, Hill, 461. 
 
 < Babcock v. Gill, 10 John. K. 287. 
 
 '^ Curtis V. Groat, 6 John. 1 0S. 
 
 « Baker v. Wheeler, 8 Wend. 505. 
 
 ' Silsbury v. McCoon, 3 X. Y. 378. 
 
Bailments fok Hiub. 317 
 
 deducting the cost of the hides, interest, commissions and other ex- 
 penses. The right of property remains unclianged.^ The rule is the 
 same where cotton clotli is delivered to calico printers, to be printed 
 and returned, and sold in the market ; the printers to be paid the 
 proceeds of the sale, after deducting the cost of the cloth and com- 
 missions. The transaction does not affect the title ; '' and where it is 
 part of the agreement that the manufactured article shall be returned 
 and sold by the owner, the bailee does not acquire any lien upon the 
 property. 
 
 §418. An . existing state of things is presumed to continue; and a 
 right of property once acquired, remains until it is transferred. Hence 
 under a contract to make or manufacture or furnish goods, the title 
 remains in the owner unless it is transferred by tlie legal effect of the 
 agreement.' Where the owner of a quantity of cotton yarn delivered it 
 to a manufacturer at the price of sixty- five cents per pound, to be paid for 
 in plaids at fifteen cents per yard, the receiver to use the cotton yarn in 
 making the warp of tlie plaids, and to use for the filling other yarn of as 
 good a quality ; it was held that the title passed ; that the transaction 
 amounted to a sale of the yarn at a specified price, to be paid for in 
 plaids at a specified price.^ The case lies hard by the line which sepa- 
 rates a sale from a bailment ; for it is conceded by the judge delivering 
 the opinion, that the title would not have passed if the delivery had 
 been on an agreement that the receiver should find the fUling and manu- 
 facture the yarn into plaids on their joint account, the cloth to be 
 divided according to their respective interests in the materials.^ And it 
 has been adjudged that the title does not pass, where rags are delivered 
 to a manufacturer at a certain price, to be made into paper and returned 
 at a certain price ; the paper being actually made according to the con- 
 tract, out of the identical rags delivered." The mode adopted in the 
 contract to fix the measure of compensation to be paid for the services, 
 does not affect the title. A delivery for manufacture is a bailment, un- 
 less the legal effect or natural operation of the contract works a transfer 
 of the property.' 
 
 1 Hyde v. Cookson, 21 Barb. 92. 
 
 2 Wood v. Orser, 25 N. T. 348. 
 
 ' Westcott V. Thompson, 18 N". T. 393, where ale was sold and delivered in barrels, 
 the barrels to be returned, or paid for at $ 2 each, in case any were not returned. 
 1 Duer, 53; and see Peck v. Armstrong, 38 Barb. 215. 
 
 4 Buffum V. Merry, 3 Mason, 478. 
 
 5 Eaton V. Lynde, 15 Mass. 242. 
 
 8 King V. Humphreys, 10 Penn. St. 217. 
 
 "I Barber v. Eoberts, 8 Maine, 8 Greenl. 101; Brown v. Hitchcock, 28 Vt. 452; Mal- 
 lory V. Willis, 4 K. T. (Comst.) 76. 
 
318 Law of Bailments. 
 
 § 419. Chattels and things dehvered to an artisan or mechanic for 
 repairs remain the owner's property, without regard to the vakie of the 
 worlc or materials employed in the process of repair, and without regard 
 to the relation which the expenses of the repairs hear to the original 
 value of the chattel. Thus, where the owner of an old wagon left it 
 with a blacksmith who was owing him, to be repaired on account of the 
 debt, and the blacksmith took it to pieces, purchased on liis own account 
 entirely new woodwork, with the exception of the tongue and evener, 
 ironed it, and had it painted at his own expense, it was held, that the 
 title still remained in the original owner.^ 
 
 § 420. B<iih'.rs Ulijht of Property (uul Lirii. The bailee for hire of 
 labor and services has an interest or special property in the chattels 
 upon which his labor and services are performed.^ An artisan has a 
 lien upon the article manufactured by him until he is paid for his labor, 
 or parts with the x3ossession pursuant to tlie terms of his agreement ; ^ so 
 held in the case of a brickmaker, who manufactured a quantity of brick, 
 on a brickyard furnished by another with wood and other necessaries to 
 carry on tlie work, the agreement being to pay the manufacturer so 
 much per thousand for the brick m;ide and shipped, on the return of the 
 vessel in which the same were carried to market. Where, in such case, 
 the brick were seized and sold as the property of the employer, under 
 an execution against him, it was held that an action of trover lay by 
 the brickmaker against the purchaser who removed the same ; but that 
 the purchaser might show the state of the accounts between the em- 
 ployer and the brickmaker, and that the latter should recover only the 
 amount of his lien upon the brick taken by the purchaser.^ In other 
 words, that the general property was in the employer, and capable of 
 being sold on an execution against him ; while the special property, 
 including the legal right to the possession, remained in the raanufacturer 
 until extinguished by a voluntary delivery.^ 
 
 § 421. So where a quantity of cotton yarn was delivered to a bailee, 
 
 ^ Gregory v. Stryker, 2 Denio, (52S. 
 
 2 2 Denio E. res. 
 
 •■' Hazard ^■. Manning, 8 Hun, 61.3; ConroTV v. Little, 115 X. Y. :^,.S7, 30r,; Arians v. 
 Brickley, 6."i ^Vis. 26. The lien is not affected by the fact that the person entitled to 
 it has recovered a judgment against the bailor for the value of the labor performed, 
 so long as the judgment remains unsatisfied. Pate v. Hoifman, 61 Hun, 386. No 
 express contract is necessary to create the lien. The law gives it to the person per- 
 forming the labor. Hazard v. Manning, 8 Hun, 61.3. 
 
 * Moore v. Hitchcock, 4 Wend. R. 292; Wheeler v. McFarland, 10 Wend. 318, 32-t. 
 
 5 Jloore V. Hitchcock, 4 Wend. 202, 296; Grinnell v. Cook, 3 Ilill, 4S.5, 491. There 
 was in the case stated no question raised as to the right of the sheriff to seize the 
 property on execution. 
 
Bailments foe Hiee. 319 
 
 upon an agreement that he should procure it to be M'oven into clotli and 
 receive a commission thereon as tlie price of the labor ; ^ and he delivered 
 the yarn to another person to weave for him at an agreed price to be 
 paid in goods ; and the cloth, being woven, was attached as the prop- 
 erty of the weaver ; it was held that the bailee receiving the yarn to 
 be woven into cloth had a special property in the cloth, and that the 
 weaver acted as his servant or agent, having no property or legal inter- 
 est in the cloth.^ The rule iS the same where logs are delivered at a 
 saw-mill under a contract with the miller that he shall saw them into 
 boards, within a specified time, on shares ; the general property remains 
 in the owner of the logs until the work is finished according to contract ; 
 and the bailee for hire of services can have no lien for a part or partial 
 performance of his agreement." When a manufacturer receives goods 
 for the purpose of being wrought in the course of his trade, the contract 
 is entire ; and without a stipulation to the contrary, he has no right to 
 demand payment until the work is complete. A fortiori he has no right 
 to carve out payment for himself, without consulting the bailor. A 
 miller is entitled to take toll from your grist, on grinding it ; but sup- 
 pose he chooses to grind only a part, and then sells the whole. He is 
 not entitled to toll for what he had actually ground. It is like the 
 common case of a man undertaking to labor during a certain time, or in 
 performing a certain amount of work for so much ; his work must be 
 finished before he can claim payment ; and if he fails to perform accord- 
 ing to his contract, he cannot acquire by lien that which he cannot 
 legally demand.^ 
 
 ^ Where the agreement is to manufacture chattels on shares, on a 
 completion of the work, the parties to the contract become as we have 
 seen tenants in common of the manufactured goods. And the bailee 
 has a right to retain the goods until a division has been made and he 
 has been paid the stipulated compensation for his labor, whether it be 
 one-tenth or one-half. Of course he acquires the absolute title to his 
 portion of the goods from the time they are specifically set apart to him 
 in payment.^ 
 
 § 422. Every bailee for hire, who by his labor or skill imparts addi- 
 tional value to the goods, has a lien thereon for his charges, there being 
 
 1 Eaton V. Lynde, 15 Mass. K. 242. 2 15 jiass. R. 242. 
 
 8 Pierce v. Schenck, 3 Hill K. 28. 
 
 * Pierce v. Schenck, 3 Hill, 28, 30, 31. If he performs until prevented from com- 
 pleting his contract by the other party, he has a lien for the work done, and also for 
 any act done, or labor performed, or money expended in the preparation of the instru- 
 mentalities hy which the work was to be performed by him. Conrow v. Little, 115 
 ST. T. 387, 393. ^ Pierce v. Schenck, 3 Hill, 28. 
 
320 Law of Bailments. 
 
 no special contract inconsistent with such lien. The lien exists equally, 
 whether there be an agreement to pay a stipulated price, or only an 
 implied contract to pay a reasonable price, unless there be a future time 
 of payment fixed. In that case the special agreement would be incon- 
 sistent with the right of lien, and would destroy it.^ 
 
 The bailee's lien extends to every portion of the goods or materials 
 delivered under one contract, and is not confined to the particular por- 
 tion pro rata, on which the labor has been bestowed ; so that the bailee, 
 by a delivery of a part of the manufactured goods, does not defeat his 
 lien upon the remainder for his whole services.-' So, too, where several 
 parcels of goods, belonging to one owner, are carried the same voyage, 
 a delivery of part of them does not divest the carrier of his lien on the 
 remainder for the whole freight.'' 
 
 § 423. The bailee waives his lien by surrendering the goods to the 
 bailor; and he loses it as to third persons by such a surrender, though 
 he stipulates that his lien shall continue.* He also waives his lien by 
 any contract inconsistent with its continuance ; as where a mechanic 
 agrees to look to a third person for his pay for repairs made upon a 
 wagon ; ^ or where he agrees to give credit for a stipulated time ; * or 
 agrees upon a mode and timeof payment excluding the theory of a lien.' 
 But the special agreement cannot be set up by the bailor after he has 
 himself failed to perform it, to defeat the artisan's lien at common law.' 
 His lien, originating in the customs and usages of business, is favored 
 on grounds of equity and convenience ; and yet not so much favored as 
 the vendor's lien, or equitable right to the purchase money of the goods 
 sold by him." 
 
 § 424. The bailee may defend or assert his interest in the goods ; he 
 
 1 Blake v. Nicholson, 3 Jlaule & Selw. E. 168; Chase v. 'Wetmore, 5 id. 180; 
 Crawshay v. Homfray, 4 Barn. & Aid. K. 50; Burdick ^^ Murray, ?, Venn. E. 302. 
 
 2 Morgan v. Congdon, 4 Const. E. 552; Wiles Laundering Co. v. Ilahlo, 105 
 N". Y. 2:J4; Hunsel v. Noble, 05 Pa. St. 343; Holderman v. Manier, 104 Ind. 118. 
 
 3 Schmidt v. Blood, 9 Wend. E. 268; McFarland v. Wheeler, 26 id. 467. 
 
 " McFarland v. Wheeler, 26 Wend. 467; Marvin v. Smith, 56 Barb. 600; Morse v. 
 Andres. E. E. Co., 39 Maine, 285; Smith v. Greenop, 60 Mich. 61; Sensenbreuner v. 
 Matthews, 48 Wis. 250. 
 
 ■* Bailey v. Adams, 14 Wend. 201. 
 
 8 Fielding v. Mills, 2 Bosw. 489. Where it is agreed that credit is to he given for 
 the price of the work done, not limited to a period preceding the time for the return 
 of the article, the contract is inconsistent with the right of lieu and none can be 
 set up. Wiles Laimdering Co. v. Hahlo, 105 N. Y. 234, 242; Stoddard Woolen 
 Manuf. Co. v. Huntly, 8 N. H. 441. 
 
 ' Trust V. Pirsson, 1 Hilton, 292. 
 
 8 Mount V. Williams, 11 Wend. 77; Conrow v. Little, 115 N. Y. 387. 
 
 ^ Fieldings v. Mills, supra, and Benedict v. Field, 16 N, Y. 595. 
 
Bailments foe Hike. 321 
 
 may retain the goods and defend his interest in them, as against the 
 owner, and as against tliird persons. He may maintain an action of 
 trespass against any one interfering with his possessions ; ^ and an action 
 of trover against the party seizing and detaining the goods.^ His recov- 
 ery as against the owner, or as against the party succeeding to his in- 
 terest, is limited to the amount of his demand. On a total breach of 
 the contract by the bailee, as where he pawns the property, the owner 
 may at once recover its value in trover, without tendering the amount 
 for which it was delivered in pledge.' And on completion of the work, 
 the bailor has the right of immediate possession as against third persons 
 and strangers.* Admitting that the bailee's Uen is not lost, where he 
 allows a third party to take the goods on payment of his charges, it is 
 quite clear that the third party forfeits the lien by any attempt to dis- 
 pose of the property in defiance of the owner's title.*^ A sale of the 
 goods by him defeats the lien.* 
 
 § 425. Iiosses, by whom home. The general rule is that the owner 
 must bear the loss of goods destroyed by fire or by casualties of a like 
 kind. The bailee is not liable where the goods are lost or destroyed 
 without any neglect on his part.' Tf materials are delivered to him to 
 manufacture, or if an article is entrusted to him to be repaired in the 
 course of his business, and it is accidentally destroyed before the work 
 is completed, the loss falls upon the owner. And hence it is held that 
 an action lies by a shipwright for work and labor done, and materials 
 delivered in repairing a ship, which is casually burnt in the dock by a 
 fire communicated from an adjacent building, before the repairs are 
 completed.^ 
 
 On the other hand, where a mechanic or manufacturer is employed 
 to make or manufacture an article out of his own materials, the title 
 remains in him until the finished article is delivered, and he must bear 
 the loss where it is destroyed by accident or fire. And as he bestows 
 his labor and services upon his own property, he cannot recover for them 
 as a separate demand.*" His only claim upon the employer is under the 
 
 1 Benedict v. Murray, 3 Vt. E. 302. 
 
 2 Moore v. Hitchcock, 4 VYend. 292. 
 ^ Gallaher v. Cohen, 1 Browne, 43. 
 
 * King V. Humphreys, 10 Barr E. 21'7. 
 
 5 Nash y. Mosher, 19 "Wend. 431. 
 
 "Dudley V. Hawley, 40 Barb. 397; Ely v. Ehle, 3 N. Y. 506; Barrett v. Warren, 3 
 Hill, 348. 
 
 ^ Hurd V. West, T Cow. 752; 2 N. Y. 153; Buddin v. Fortunate, 31 State Eep'r, 278. 
 
 ' Menetone v. Athawes, 3 Burr. E. 1592; 2 Kent's Comm. 591; Atkinson v. Bell, 
 8 B. & C. 277. 
 
 ' Atkinson v. Bell, supra. 
 
 21 
 
322 Law op Bailments. 
 
 contract ; and that only gives Mm the price of the article, when it is 
 finished and delivered.^ 
 
 It is quite clear that the owner of goods or materials bailed for work 
 and services upon them, has an insurable interest in the property ; and 
 that the bailee also has an insurable interest.^ The party on whom a 
 loss by fire must fall, may protect himself by procuruig a policy of insur- 
 ance on the property.^ A factor may procure a policy in his own name 
 covermg its full value, and the moneys received thereon belong to the 
 owner, after satisfying the factor's lien.^ 
 
 § 42(5. Hike of Labor axd Services Gexerallt. 
 
 A brief consideration of the principles applicable to contracts of this 
 class is in place here, because they bear with equal force upon the con- 
 tract of bailment. Under a contract for work and services, the con- 
 tractor must perform in a workmanlike manner.-^ Where materials 
 are delivered to be manufactured, and the work done upon them is not 
 properly performed, the bailee cannot demand compensation therefor ; 
 it being a settled principle that where there has been no beneficial 
 service there shall be no pay." Without any express agreement on the 
 subject, the employer must pay a reasonable compensation for the serv- 
 ices rendered him on his request or at liis instance.' -Vnd the contract 
 being silent on the subject, the artisan or mechanic is bound to render 
 faithful and diligent services. The law requires of each man in his 
 vocation diligence and skill. It requires this of a carpenter or mason. 
 When he sues for work and labor under a general retainer, the value 
 of his services depends upon the skill and fidelity ^-iith which they were 
 rendered: he recovers the worth of his services, fy'f«r(?iM« meruit.^ The 
 same principle applies where a blacksmith or farrier is employed to 
 shoe a horse, or a tailor to make a garment, or a watchmaker to repair 
 a watch. The law implies a contract on the part of each that he will 
 
 ^ ilixer V. Howarth, 21 Pick. U. 207; Code of Louisiana, Arts. 2729, 27:;0. 
 
 2 Van Natta v. The Mutual S. Iiis. Co., 2 Sandf. 490. 
 
 " Savage v. Corn Exchange Ins. Co., .j() N. Y. 655; Buffalo Steam Engine Works v. 
 Sun Mutual Ins. Co., 17 X. Y. 401; Keyes, 87. A lienor has no claim to the 
 moneys paid by the insurer to the owner. Carter v. Eockett, S Paige, 4:17. 
 
 * Edwards on Factors and Brokers, § 75. 
 
 ^ Williams v. Keech, 4 Hill, ICS, 6 Farnsworth v. Garrard, 1 Campb. -JS. 
 
 'A promise to pay is implied; Hicks v. Burhans, 10 John. K. 243; Dunbar v. 
 Williams, 10 John. 249; Eobinsou v. Raynor, 28 X. Y. 494; but not contrary to the 
 fact; Galviu V. Prentice, 45 N. Y. 1IJ2; Topiiing \. Swords, IE. D. Smith, 609; or 
 presumed fact; Williams v. Hutchinson, 3 N. Y. 312. 
 
 8 Grant v. Button, 14 John. E. 277; Emery v. Smith, 40 N. H. 151; Adams v. 
 Woonsocket Co., 11 Met. 327; Williams v. Keech, 4 Hill, IfiS; Farnsworth y. (Jarrard, 
 1 Campb. 3S. 
 
Bailments fou Hlkb. 323 
 
 perform the work entrusted to him withm the line of his business dili- 
 gently and skillfully ; and it takes some care that he shall be properly 
 educated in the duties of his calling.^ 
 
 § 427. The degree of intelligence and skill required of a man by the 
 law depends much upon his calling. An engineer, a lawyer or physi- 
 cian must be specially educated to the duties of his calling ; besides the 
 requisite scientific knowledge, he must have reasonable skill in its appli- 
 cation. Compared with unprofessional men, he must possess a high 
 degree of intelligence, together with the accurate and exact knowledge 
 of an expert. Physicians, for example, must have a knowledge of the 
 heahng art ; '"■ and though medicine be not one of the exact sciences, it 
 is quite clear that skill in the practice of medicine can only be acquired 
 by the study and acquisition of those sciences which stand related to 
 the practice, such as physiology and chemistry ; and by close observa- 
 tion and experience in the treatment of diseases. It is equally evident 
 that the skill of a surgeon can only be gained by a perfect union of 
 science with practice. The law assumes the necessity of this union, 
 and implies a contract on the part of the physician or surgeon that he 
 possesses and wUl exercise reasonable and ordinary skill in his pro- 
 fession ; not the highest degree of science and skill ; but that reasonable 
 measure of knowledge and skill which will enable him to discharge the 
 duties he assumes with discretion and safety. He does not warrant a 
 cure, or the success of an operation ; and he is not responsible for a 
 mistake, or for an error of judgment, in matters of reasonable doubt or 
 uncertainty. Where there is but one recognized and approved mode of 
 treatment, his departure from it will render him liable for the conse- 
 quences ; but where a different treatment is followed by different 
 schools of medicine, he is at liberty to follow the practice of his own 
 school. 
 
 The same rule applies to men engaged in the different branches or 
 departments of the medical profession ; with perhaps a little more strict- 
 ness, where a man devotes himself to a single line of practice ; as ac- 
 coucheur, surgeon, or oculist.^ 
 
 § 428. There is a tacit understanding, in the employment of a physi- 
 
 1 3 Black. Comm. 165. Our system of apprenticeship is designed for the education 
 and training of the young in the art or business which they are to pursue in life. 1 
 Black. Comm. 426. 
 
 2 Carpenter v. Blake, 50 IST. Y. 696, reversing S. C. 60 Barb. 188. 
 
 3 Rich et uxor v. Pierpont, 3 F. & F. 35. (Action for want of due and proper care 
 and skill as accoucheur.) "To render a medical man liable, even civilly, for negli- 
 gence, or want of due care or skill, it is not enough that there has been a less degree 
 of skill than some other medical man might have shown, or a less degree of 
 
324 Law of Bailments. 
 
 cian, that he will follow his usual practice ; that being a botanic physi- 
 cian, he will follow that system ; ^ or a homeopathic physician, that he 
 
 care than even he himself might have bestowed; nor is it enough that he himself 
 acknowledges some degrees of want of care; there must have been a want of competent 
 and ordinary care and skill, and to such a degree as to have led to a bad r.jsult." 
 
 Ruddock V. Lowe, 4 F. ifc F. 519. (Malpractice as a doctor.) "A person not 
 qualified, as not being a regular medical practitioner, but assuming to be or to practice 
 as such, and undertaking to treat another for a disease, is liable for injury caused by 
 ignorant and improper treatment, by which the patient is rendered worse instead of 
 better, and is injured by the use of improper medicine." 
 
 Hancke v. Hooper, 7 V. & P. 81. (Malpractice as a surgeon.) " A surgeon is re- 
 sponsible for an injury done to a j)atient, through the want of proper skill in his ap- 
 prentice; but in an action against him, the plaintiff must show that the injury was 
 produced by such want of skill, and it is not to be inferred. And if a person goes 
 into a surgeon's shop and asks to be bled, saying he has found relief from it before, and 
 does not consult the person there as to the propriety of performing the operation, if 
 there are no external indications of its being improp(>r, such person is justified in per- 
 forming it, and the surgeon will not be answerable for its not producing a beneficial 
 result." 
 
 Laufihier and wife v. Phipos, 8 C. & P. 47"j. (Malpractice as a surgeon.) " Every 
 person who enters into a learned profession undertakes to bring to the exercise of it 
 a reasonable degree of care and skill ; he does not, if he is an attorney, undertake at 
 all events to gain the cause; nor does a surgeon undertake that he will perform a c^re; 
 nor does the latter undertake to use the highest possible degree of skill, as there may 
 be persons of higher education and greater advantages than himself ; but he imder- 
 takes to bring a, fair, reasonable and- competent degree of skill ; and in an action 
 against him by a patient, the question for the jury is, whether the injury complained 
 of must be referred to the want of a proper degree of skill and care in the defendant, 
 or not." 
 
 Wilmot V. Howard, 39 Yt. 447. (Malpractice in setting plaintiff's arm and inatten- 
 tion thereafter, etc.) There is an implied obligation on a man holding himself out 
 to the community as a surgeon, and practicing that profession, that he should possess 
 the ordinary skill in surgery of the profession generally. Where, by improper treat- 
 ment of an injury by a surgeon, the patient must inevitably have a defective arm, the 
 surgeon is liable to action, even though the mismanagement or negligence of those 
 having the care of the patient may have aggravated the case and rendered the 
 ultimate condition of the arm worse than it otherwise would have been. The liability 
 of the sm'geon being established, the showing of such mismanagement or negligence 
 only affects the measure and amount of damages." 
 
 Long V. Morrison, 14 Ind. 595. (Malpractice in causing death of patient.) " A 
 physician is liable for damages arising as well from the want of skill, as from neglect 
 in the application of skill." 
 
 Wood V. Clapp, 4 Sneed. 65. (Malpractice in reducing a fracture in the arm — 
 surgeon.) "A person assuming to be qualified for the exercise of any profession, 
 art or vocation, is responsible for any damage which may result to those who employ 
 him, from the want of the necessary knowledge, skill and science which such pro- 
 fession demands. The law does not, however, require the highest degree of skill and 
 science, but only such reasonable degree as will enable the person safely and dis- 
 
 1 Bournan v. Woods, 1 Iowa, 441. 
 
Bailments for Hike. 325 
 
 will follow that system.^ And it would seem that an inexperienced 
 person, employed vdth a perfect knowledge of his want of experience, 
 
 creetly to discharge the duties assumed ; and the mere failure of a course of treatment is 
 not of itself conclusive as to such want of skill in the practitioner." 
 
 Patten v. Wiggin, 51 Me. 594. (Action for professional services — defense mal- 
 practice — defendant more injured than benefited, etc.) " Physicians and surgeons 
 who offer themselves to the public as practitioners impliedly promise thereby that 
 they possess the requisite knowledge and skill to enable them to treat such cases as 
 they undertake with reasonable success. This rule does not require the possession of 
 the highest, or even the average sldll, knowledge or experience, but only such as will 
 enable them to treat the case understandingly and safely. The law also implies that, 
 in the treatment of all cases which they undertake, they will exercise reasonable and 
 ordinary care and diligence. They are also bound always to use their best skill and 
 judgment in determining the nature of the malady and the best mode of treatment, 
 and in all respects to do their best to secure a perfect restoration of their patients to 
 tealth and soundness. But physicians and surgeons do not impliedly warrant the 
 recovery of their patients, and are not liable on account of any failure in that respect, 
 unless through some default of their own duty, as already defined. If the settled 
 practice and law of the profession allows of but one course of treatment in the case, 
 then any departure from such course might properly be regarded as the result of want 
 of knowledge, skill, experience or attention. If there are different schools of practice, 
 all that any physician or surgeon undertakes is, that he imderstands and will faith- 
 fully treat the case according to the recognized law and rules of his particular school." 
 
 Howard v. Grover, 28 Me. 97. (Malpractice as a surgeon.) "A surgeon is not 
 liable for a want of the highest degree of skill in the performance of an operation in 
 the line of his duty; hut only for the want of ordinary skill, and for the want of 
 ordinary care and ordinary judgment." 
 
 Fowler v. Sergeant, 1 Grant's Cases, 355. (Malpractice as surgeon, in setting a limb.) 
 " A physician or surgeon is not chargeable for ignorance of a case, if he prescribes 
 for it rightly.' ' 
 
 Eitchey v. West, 23 111. 385. (For injuries arising from negligence and lack of skill 
 in defendant.) " Wien a person assumes the profession of physician and surgeon, 
 the law holds him responsible for any injury arising from a want of reasonable care, 
 skill and diligence in his practice, unless the services rendered were gratuitous [in 
 which case he is liable only for gross negligence]." 
 
 Hord v. Grimes, 13 B. Mon. 188. (Action for causing death of a slave.) " A physi- 
 cian is responsible for all the ill consequences which may result from the administra- 
 tion of medicine to a slave, without the consent of the owner." 
 
 Bowman V.Woods, 19Greene,441. (Malpractice in a case of accouchement.) "The 
 law implies an undertaking on the part of every medical practitioner that he will use 
 an ordinary degree of care and skill in his practice, and will hold him liable for gross 
 carelessness or unskillfulness. A physician is expected to practice according to his 
 professed and avowed system." 
 
 Smothers v. Hanks, 34 Iowa, 286. (Malpractice in treating a fractiwe.) The law 
 requires of physicians and surgeons in the treatment of their patients the use of 
 ordinary skill and diligence only, the average of that possessed by the profession as a 
 body, and not of the thoroughly educated only; having regard to the improvements 
 and advanced state of the profession at the time of the treatment. The case of 
 
 ^ Corsi V. Maretzek, 4 E. D. Smith, 1. 
 
326 Law of Bailments. 
 
 is only liable for the exercise of diligence and such skill as he possesses. 
 On the same ground, a physician of much experience and great skill 
 
 McCandless v. McWlia, 22 Penn. St. 261, criticised and reviewed. Cli. J. Beclt dis- 
 sented, holding, that the law requires the use of tliat sliill ami diligence ordinarily 
 exercised by the thoroughly educated physicians and surgeons. 
 
 Bellinger v. Craigue, 31 Barb. ",:U. (Malpractice in treatment of a broken hmb.) 
 " The law implies an undertaking on the part of a physician or surgeon that he has 
 ordinary skill, and that he will execute the business intrusted to him with ordinary 
 care and skill. If he fails in this duty, he is guilty of a default in his undertaking, 
 and cannot collect the pay for his services, but is liable in damages to the person who 
 employed him." 
 
 Carpenter v. Blake, 60 Barb. 488. (Negligence and malpractice in treatment of 
 arm, etc.) " One holding himself out as a surgeon is liable as well for want of skill 
 as for negligence; and the injured party may bring his action to recover for damages 
 resulting from both, and recover on proving damages resulting from either." In 
 such a case, the questions to be decided, are, 1st, whether the defendant possessed the 
 ordinary skill of persons acting as surgeons; and 2d, if he did, whether he was 
 chargeable with negligence in not applying it in his treatment of the plaintiff. The 
 decision of the Supreme Court was reversed in the appellate court, the Court of 
 Appeals holding that whether defendant was or was not skillful in his profession, to 
 be a material issue. 50 N. T. 696; S. C. again, 10 Hun, S-jS; 75 X. T. 12. 
 
 Corsi v. Maretzek, 4 E. D. Smith, 1. (The question was, whether a homeopathic 
 physician is a "regular physician.") "In the absence of special statutes, the law 
 does not exclusively recognize any particular system of medicine or class of medical 
 practitioners." "Medicine is a progressive rather than an exact science; and in 
 determining the legal significance of the word ' physician, or doctor,' when used in a 
 contract, the term must be held to mean any person who makes it his regular business 
 to practice physic." 
 
 Simonds v. Henry, 39 Me. 1.3.">. (Assumpsit for a set of artificial teeth.) A dentist 
 is required to use a reasonable degree of care and skill in the manufacture and fitting 
 of artificial teeth. The exercise of the hijihest perfection of his art is not implied in 
 in his professional contract. 
 
 Leighton v. Sargent, 27 X. H. (or 7 Fost.) 400. (Negligence, etc., in treating a 
 fracture.) A physician or surgeon, without a special contract for bhat purpose, is 
 never considered as warranting a cure. His contract, as implied in law, is, that, 1. he 
 posssesses that reasonable degree of learning, skill and experience which is ordinarily 
 possessed by others of his profession; 2. that he will use reasonable and ordinary care 
 and diligence in the treatment of the case committed to him; 3. that he will use his 
 best judgment, in all cases of doubt, as to the best course of treatment. He is not 
 responsible for want of success unless it is proved to result from want of onliuary 
 skill, or want of ordinary care and attention. He is not presumed to engage for 
 extraordinary skill, or for extraordinary diligence and care. He is not responsible for 
 errors of judgment, or mere mistakes in matters of reasonable doubt and uncer- 
 tainty. 
 
 McNevins v. Lowe, 40 111. 209. (Malpractice as a surgeon.) " Tlie highest degree 
 of care and skill is not required of a physician to relieve him from liability for 
 damages resulting from his treatment of a patient; only reasonable care and skill 
 are necessary." But if a person holds himself out to the public a ^ a physician, he 
 must he held to ordinai-y care and skill in every case of which he assuuus the charge, 
 
Bailments for Hike. 327 
 
 should be held to the exercise of more than ordinary skill ; and a spe- 
 ciaUst to the exercise of at least the ordinary skill of professional men 
 engaged in his specialty. And yet it is quite clear that the common 
 law, while it goes upon the theory of contract up to a certain point, 
 does reaUy favor a rule of uniform application, demanding- of professional 
 'men both ordinary skill and diligence ; diligence, with reasonable skill.^ 
 § 429. A surveyor, an engineer, an architect or builder is answerable 
 to his employer for reasonable and ordinary skill in the work on which 
 he is employed, within the line of his business. lie comes under an 
 obligation to his employer ; his duty springs out of his contract, and it 
 is not always commensurate with that of his employer towards the 
 public or third persons." Employed as a skilled workman or artist, he 
 engages to perform the work with the requisite ability and skill ; his 
 engagement to this effect is implied from his profession or habitual 
 occupation." Employed as an engineer in the erection of a bridge, he is 
 bound to ascertain for himself the nature of the soil, by actual ex- 
 amination and experiment ; * and he is answerable to his employer for 
 the proper construction of the bridge with a view to its strength and 
 
 • 
 whether in the particular case lie has received fees or not. Where he does not profess 
 to be a physician, however, nor to practice as such, and is merely asked his advice as 
 a friend or neighbor, he does not incur any professional responsibility. The case of 
 Eitchey v. West, 20 111. 3S5, is to be understood in this sense. 
 
 The current of authority calls for reasonable and ordinary intelligence and skill in 
 the practice of medicine, regard being had to the advanced state of the healing art. 
 And it is well settled that a physician cannot he held chargeable, where his patient's 
 refusal to follow his prescription or his negligence contributes to the injury sustained. 
 McCandless v. McWha, 22 Penn. St. 261; Hibbard v. Thompson, 109 Mass. 286; 
 Tefft V. Wilcox, 6 Kans. 46; Heath v. Gilson, 3 Oregon, 64; see case of inoculation; 
 Landon v. Humphrey, 9 Conn. 209. 
 
 1 Carpenter V. Blake, 60 Barb. 488; S. C. 50 N. Y. 696; 10 Hun, 358; 75 N. Y. 12; 
 Leighton v. Sargent, 27 J^". H. 460; MclN'evins v. Lowe, 40 111. 209; McCandless v. 
 McWha, 22 Penn. St. 261; Landon v. Humphrey, 6 Conn. 209; Euddock v. Lowe, 
 4 F. & F. 519. 
 
 2 CunlifE V. Mayor, etc., of Albany, 2 Barb. 190; S. C. 2 N. Y. 165, case of a bridge 
 negligently built. See Loop v. Litchfield, 42 N. Y. 351; and see Caldwell v. New 
 Jersey Steamboat Co., 47 X. Y. 282. 
 
 8 Harmer v. Cornelius, 5 C. B. (JST. S.) 236. 
 
 < Moneypenny V. Hartland, 1 Carr & Payne, 352; S. C. 2 id. 378. The plaintiff 
 was employed by defendants as architect and engineer in the work of building a bridge 
 over the Severn, and this action was brought by him to recover compensation for his 
 services; and it was held to be the plaintiff's duty to examine for himself into the 
 nature of the soil ; that in making his plans and estimates he is not at liberty to act 
 upon information received from another person ; and further, that he is not entitled 
 to compensation for his services, where his estimates of the expense to be acted upon 
 turn out incorrect (being too low) to a considerable extent; whether such error arises 
 from negligence or want of skill. 
 
328 Law of Baxlsibnts. 
 
 safety, so far as the plan and materials are left to his discretion. He 
 impliedly undertakes that he possesses and will exercise the requisite 
 abUity and skill in the work he undertakes ; he assumes a respon- 
 sibility involving exact knowledge and professional skill. His ability 
 is analogous to that of a manufacturer who makes an article to order, 
 for a given use, where the mode of the manufacture is left to his dis-- 
 cretion. Acting under a contract which specifies the plan and materials 
 of the structure, his liability does not extend beyond the terms of his 
 agreement ; and yet even here he cannot recover unless he fulfills the 
 terms of the contract, or at least takes care that the bridge is built in a 
 workmanlike manner.^ 
 
 § 430. An attorney or counselor is bound by the same rule of dili- 
 gence as other business men;- and like the members of the medical 
 profession, he must bring to the discharge of the duties assumed by 
 him the ordinary skill of prudent men engaged in the same calling. 
 He does not guaranty the accuracy of his opinion upon difficult ques- 
 
 1 Harmer v. Cornelius, 5 Com. Bench, N. .S. 230. The plaintiff was employed by 
 the defendant as an artist, a panorama and scene painter, fonat least one month, at 
 so much a week; being found incompetent he was discharged at the end of the second 
 day; and the action was brought for wrongfully dismissing the plaintiff. Wells, J. : 
 " When a skilled laborer, artisan or artist is employed there is on his part an implied 
 warranty that he is of skill reasonably competent to the task he undertakes — Spondes 
 peritiam arth. Thus, if an apothecary, a watclimalver, or an attorney be employed 
 for reward, they each impliedly undertake to possess and exercise reasonable skill in 
 their several arts. The public profession of an art is a representation and undertak- 
 ing to all the world that the professor possesses the requisite ability and skill. * » * 
 An engineer is retained by a railway company, for a year, to drive an express train, 
 and is found to be utterly unskillful and incompetent to drive or regulate the locomo- 
 tive — are the railway company still bound, under pain of an action, to entrust the 
 lives of thousands to his dangerous and demonstrated incapacity ? A clerk is retained 
 for a year to keep a merchant's books, and it turns out that he is ignorant, not only 
 of bookkeeping, but of arithmetic — is the merchant bound to continue him in his 
 employment'.'" See .Jenkins v. Betham, 1.5 Com. Bench, 168, 189; Losee v. Clute, 
 51 N. Y. 4'.)4. Taft v. Inhabitants of Montague, 14 Mass. 282. In this case the 
 plaintiff brought his action to recover on a special contract to build for the defendants 
 a stone bridge for a price agreed upon; audit appearing that the plaintiff had used 
 improper materials, and constructed the liridge so defectively that it gave way and 
 soon after proved wortliless, it was held that lie could not recover on the contract 
 because he had not fuliilled it on his part, nor on a qnantuin meruit, because the 
 defendants had received no benefit from the plaintiff's labor. The bridge was built 
 in the autumn of 1810, and it stood until the spring of 1812, having been occasionally 
 repaired during that time. In cases of this kind the contractor is not allowed to 
 ignore the contract and recover the value of his services without reference to it; unless 
 it appears that the work was carried on with the knowledge and assent of his em- 
 ployer, or accepted by him after it was finished. Jewell v. Schroeppel, 4 Cow. 504 
 
 ^ Gleason v. Clark, ( 'ow. 57. 
 
Bailments fok Hire. 329 
 
 tions of law, or the success of a suit or proceeding ; ^ and he does im- 
 pUedly hold himself out to the world as qualified for the business, and 
 familiar with that branch of it pursued by him.^ He undertakes to 
 transact the business entrusted to him, with a reasonable knowledge 
 of the law, and with diligence ; and though seldom held liable for 
 errors of opinion or mistakes in the choice of remedies, he is occasionally 
 condemned in damages for omissions, blunders and negligence; for 
 inattention to the rules of practice ; for the omission of an act necessary 
 to the protection of his client ; for delays in the commencement of an 
 action; for a failure to prepare a cause for trial; and for similar 
 neglects of duty whereby his client is injured." He is also liable for 
 the neglect of his clerk, and for the misconduct of those employed by 
 him in the transaction of his business.* 
 
 § 431. In England the attorney does, but the barrister or counselor 
 does not, enter into a contract with his client ; and hence while the 
 attorney may recover of his client a compensation for his services, the 
 counsel cannot. He accepts a fee as the Roman patron did of his client, 
 paid to him in advance as a gratuity or present.^ With us the relation, 
 though one of honor and confidence, is also one of contract ; and a 
 counsel as well as an attorney may recover the value of his services, 
 being liable like any other man for negligence or any breach of his con- 
 tract.' Valid and defensible as the English rule may be, in a society 
 
 ' Bowman v. Tallman, 27 How. Pr. 212, 27.3; S. C. 40 id. 1; Purves v. Landell, 12 
 Clark & Fiimelly, 91; Parker v. Eolls, 14 C. B. 691; Wilson v. Buss, 20 Me. 421; 
 Gambert v. Hart, 44 Cal. 542; Walpole v. Carlisle, 32 Ind. 415; Babbitt v. Bumpus, 
 73 Mich. 331; Steven v. Walker, 55 111. 151; Nat. Savings Bank v. Ward, 100 U. S. 
 195; Lamphierv. Phipos, 8 Carr. & Payne, 475. 
 
 2 Donaldson v. Holdaue, 7 C. & T. 762; Gambert v. Hart, 44 Cal. 542; Carter v. 
 Tallcot, 36 Hun, 893, 896. 
 
 "Parker v. Eolls, 14 C. B. 691; Godefroy v. Dalton, 6 Bing. 468; Knights v. 
 Quarles, 2 Bro. & B. 102; Cooper v. Stevenson, 21 L. J. N. S. (Q. B.), 292; Walpole 
 v. Carlisle, 32 Ind. 415; Stevens v. Walker, 55 HI. 151; Long v. Orsi, 18 C. B. 610; 
 A. B.'s estate, 1 Tucker (N. T.), 247; Arnold v. Robertson, 3 Daly, 298; Hopping v. 
 Quinn, 12 Wend. 517, 519; Nat. Savings Bank v. Ward, 100 U. S. 195; Von Wall- 
 boffen V. Newcombe, 10 Hun, 236; Carter v. Tallcot, 36 Hun, 393. 
 
 * Floyd V. Nagle, 3 Atk. 568; Rhines v. Evans, 66 Penn. St. 192; Bradstreet v. 
 Everson, 72 Penn. St. 124. The attorney's clerk in his absence may transact the 
 ordinary business of the office — such as is usually entrusted to him; Power v. Kent, 
 1 Cowen, 211; Sibley v. Waffle, 16 N. T. 183; he' cannot discontinue an action; 
 Irvine v. Spring, 85 How. Pr. 479; S. C. 7 Robt. 293; or give a discharge of a debt 
 without satisfaction; Carter v. Talcott, 10 Vt. 471. 
 
 6 2 Broom & Hadley's Comm. 19-30, Amer. Ed. 
 
 6 Stevens v. Adams, 23 Wend. 57; S. C. 26 Wend. 451; Balsbaugh v. Frazer, 9 
 Penn. St. 95; In re Paschal, 10 AVallace, 483. The EngUsh rule is held in New Jersey. 
 Seeley v. Crane, 3 Green (N. J.), 35. 
 
330 Law op Bailments. 
 
 deeply penetrated with tlie sentiments appropriate to and inspired by 
 her recognized ranks in life, it is quite evident that the theory of con- 
 tract is nearer to the truth and more consonant to the better sense and 
 spirit of American society. The sense of honor is not weakened when 
 it is married to a sense of duty. 
 
 The duty of the advocate or counselor arises out of the contract 
 created by his retainer and the relation thus established between him 
 and his client; just as the duty of an attorney springs from his retam- 
 er.^ The fact of a retainer being proved, as it may be in various ways ; 
 as by showing a verbal request, or the actual conduct of a cause with 
 the client's knowledge, or any circumstances from whicli a retainer 
 may be fairly inferred ; - the counsel or attorney may recover the 
 value of his services, proving the same where there is no contract fix- 
 ing the compensation, as in any other action for services.' If in suck 
 an action the defense goes to destroy the plaintiff's claim entirely, or 
 to lessen the amount, it may be given in evidence under a general 
 denial ; - the value of the services is in issue.^ An attorney cannot 
 recover for services rendered valueless through his negligence ; and 
 he cannot recover costs against his client for services in recovering a 
 judgment which is set aside for irregularity, or the costs of opposing 
 the motion to set aside his irregular proceedings, or money paid to 
 satisfy the costs of a judgment of discontinuance suffered through his 
 negligence or ignorance. The attorney is bound to know what the 
 law is ; and if, having a note placed in his hands for collection, he 
 bring a suit on it on the last day of grace, the bringing of such suit 
 will be imputed either to his ignorance or negligence ; and in either 
 case he cannot recover agamsthis client for such fruitless services."^ 
 
 § 432. The civil law provides for the creation of religious corpora- 
 tions, and in many ways fosters and protects our churches on account 
 of the influences springing from them as sources of civd virtue and 
 public morality. It recognizes them as charities, entitled to legal pro- 
 tection.' The separation declared in our fundamental law between the 
 
 ' Fray v. Voules, 1 E. & E. 8:59; Prestwich v. Foley, is C, B. N. S. 806; Chown t. 
 Parrott, 14 C. B. N. s. 1i. 
 
 2 Manchester Bank V. Fellows, 28 K. H. .SOl'; Hirslifield v. Landman, 3 E. 1). Smith, 
 208; Pixley v. Butts, 2 Cow. 421 ; Hotclikiss v. Le Boy, i) John. E. 142. 
 
 ' Garfield v. Kirk, (w Barb. 4(14; Smith v. Davis, 4.j K. H. OiiC; Webb v. Browning, 
 14 Mo. 3.-J.3; Hadley v. Ayers, 12 Abbott X. S. 240. 
 
 ^ Schemerhorn v. Xan Allen, 18 Barb. 29. ^ Gleason v. Clark, 9 Cow. 57. 
 
 « Hopping V. Quinn, 12 Wond. 517; Gleason ^. Clark, supra; Nixon v. Phelps, 29 
 Vt. 198; and see Carter v. Tallcot, SG Hun, .'39::;; Von Wallhoffen v. Xewcombe, 10 
 Hun, 236, 240. 
 
 ' Our statutes are framed to protect as well as create religious corporations. The 
 
Bailments fob Hieb. 331 
 
 church and state is not hostile but friendly to religion ; it is in spirit 
 an institute of freedom.^ The civil law does not therefore prescribe to 
 our ministers and clergymen any rule of care and diligence in their call- 
 ing. Having created the religious corporation, it leaves the body free 
 to make contracts to accomplish the purposes of its being ; and en- 
 forces these contracts according to their true intent and meaning.^ 
 Under a contract for the services of a minister or clergyman referring 
 to the discipline and government of the church, the court is at liberty 
 to examine the church polity so far as to determine the question of 
 performance under the agreement ; and it is adjudged that a failure in 
 readiness and ability to perform, arising from misconduct and immor- 
 ality, authorizes a dissolution of the contract. A severance of the 
 relation between the minister and the society, in the manner prescribed 
 by the rules of the body, terminates the contract.' The law will not 
 permit the property of the corporation to be used, for the support of a 
 minister, while he is under a sentence of deprivation.* 
 
 § 433. Contracts for Personal Services. Equity does not decree a 
 specific performance of a contract for personal services.^ Two reasons 
 are assigned hi refusal of tliis form of remedy ; namely, respect for per- 
 sonal freedom, and the impossibility of enforcing the performance of a 
 stipulation for personal services according to the true intent of the con- 
 tract. Thus, a court of equity will not enter a decree to compel an 
 
 People et al. v. Tuthill, 31 N. T. 550. And the general law of the country is ani- 
 mated by the same spirit. See .Judge Strong's "Discourses on the Relations of Civil 
 Law to Church Polity, Discipline and Property," and Hoffman's Ecclesiastical Law. 
 
 1 " Congress shall make no law respecting an establishment of religion or prohibit- 
 ing the free exercise thereof; or abridging the freedom of the press."— Article 1. of 
 the Amendments to the TJ. S. Constitution. The words of the State Constitution are 
 equally explicit : "The free exercise and enjoyment of religious profession and wor- 
 ship, without discrimination or preference, shall forever be allowed in this State to 
 all mankind ; and no person shall be rendered incompetent to be a witness on account 
 of his opinions on matters of religious belief." — Art. I. § 3. 
 
 2 Moore v. Fox, 10 John. E. 244; The First Religious Society of Whitestown v. 
 Stone, 7 John. E. 115. A " call " to a minister is the act of the society or corpora- 
 tion; Paddock v. Brown, 6 Hill, 530. It is for an indefinite time. Sheldon v. Easton, 
 24 Pick. 281. 
 
 ' Dutch Church of Albany v. Bradford, 8 Cowen, 457 ; Dieffendorf v. Reformed 
 Calvinist Church, 20 John. E. 12. 
 
 * Robertson v. IJullions, 9 Barb. 64; S. C. 11 N. T. 248, and cases cited in those de- 
 cisions ; Gram v. The Prussia, etc, German Society, 36 N. T. 161 ; People \\ Rector, 
 etc., of Church of the Atonement, 48 Barb. 603; Youngs v. Ransom, 31 Barb. 49. 
 
 ^Haight V. Badgeley, 15 Barb. 499; Mapleson v. Del Puente, 13 Abb. Jf. C. 144; 
 Iron Age Pub. Co. v. "Western IJnion Tel. Co., 83 Ala. 498; Wakeham v. Barker, 82 
 Cal. 46; William Rogers Manuf. Co. v. Rogers, 58 Conn. 356; Wollensac v. Briggs, 
 119 111. 453. See ilarsh v. Blackman, 50 Barb. 329. 
 
332 Law of Bailments. 
 
 actor to fulfill his engagement for a season or for a term of years ; ^ or 
 to compel a person to sing in an opera ; ^ the court will not decree an 
 active performance ; but it will (in England) decree a negative perform- 
 ance, where a person has agreed not to act or sing in any other theater 
 or opera for a given time ; and will enjoin him from so acting or singing 
 pending the suit.^ But the remedy so full of vigor has been refused in 
 this State pendente lite, where an injunction was prayed for against an 
 artist, a painter, who, it was alleged, had agreed to give his exclusive time 
 and services to the firm of which he was a member, and there was 
 some conflict in regard to the substance of the contract.* And in the 
 absence of an explicit negative agreement, an injunction will not be 
 granted with a view to enforce an affirmative performance of the con- 
 tract.' 
 
 § 434. An artist's contract to execute a work of art is strictly per- 
 sonal ; he is not permitted to perform his agreement to paint a portrait 
 by the hand of another." ^Vud the same rule applies to all contracts 
 for personal services. The employed has therefore no assignable in- 
 terest in the contract so long as it remains wholly executory. After 
 the services have been performed, the demand therefor is assignable 
 like any chose in action ; ' and a cause of action for the breach of the 
 contract is assignable.* On the other hand, the employer may assign a 
 contract for general services;" or for materials and work hivolving 
 skill, like the building of a boat." But he cannot assign contracts for 
 menial services, or domestic services that are to be rendered m the em- 
 ployer's family ; and he cannot assign a contract of apprenticeship, since 
 that involves a personal trust ; ^^ and yet the master's engagement under 
 the assignment will bind him,^^ and the apprentice assenting to the 
 
 iHamblin ^. Diimeford, 2 Edwards Ch. R. 529; Morris v. Colman, 18 Ves. 437; 
 Clarke v. Price, 2 Wilson, 1.5 "7; Kemble v. Kean, 6 Sim. E. 333. 
 
 2De Rivafinoli v. Corsetti, 4 Paige Ch. 204; Sanquirico v. Bendetti, 1 Barb. 315. 
 But see DufC v. Russell, 39 State Eep'r, 266; Pratt v. :\Iontegriffo, 2.3 Abb. X. C. 334. 
 
 3 Lumley v. Wagner, 1 De G. M. & G. 604; 13 Eng. L. & Eq. 2.52; Rolfe v. Rolfe, 
 15 Sim. 88. This seems to be the rule in this State. Metropolitan Exhibition Co. v. 
 Ward, 24 Abb. X. C. 393; Metropolitan Exhibition Co. v. Ewing, 24 Abb. N. C. 419; 
 Daly V. Smith, 49 How. 150. See Cort v. Lassard, 18 Oregon, 221. 
 
 * Fredericks v. Mayer, 1 Bosw. 227 ; 13 How. Pr. 566. 
 
 ^ Butler V. Galletti, 21 How. Pr. 405. 
 
 " Francois v. Ocks, 2 E. D. Smith, 417. 
 
 ' Hooker v. Eagle Bank, 30 X. Y. 83. 
 
 s Monahan v. Story, 2 E. D. Smith, 393. 
 
 « Horner v. Wood, 23 X. Y. 350, contract for the labor of convicts in a prison. 
 
 I" Osborn v. Thomas, 46 Barb. 514. 
 
 " Futrill V. Vaun, 8 Md. 402 ; Hall v. Gardner, 1 Mass. 172. 
 
 1- Xickerson v. Howard, 19 John. 113. 
 
Bailments foe Hike. 333 
 
 transfer will not be permitted to recover of the assignee for his serv- 
 ices.^ 
 
 § 435. A party is not permitted to abandon, or to arrest the execution 
 of a contract which can be specifically enforced by a decree in equity ^ 
 — a contract under which the damages cannot be established or ascer- 
 tained with exactness, or until the lapse of a long time or the death of 
 one of the parties ' — a contract under which a compensation in damages 
 does not furnish a complete and satisfactory remedy.^ 
 
 Under an ordinary contract for work and materials, the employer has 
 a right to stop short and countermand the order given for the work ; 
 and the employee has no right to go on after the countermand and in- 
 crease the damages to be recovered for the breach of the contract.^ On 
 the contrary, it is his duty to take care to diminish the amount of the 
 damages, as far as he can without injury to himself." 
 
 § 436. An infant who engages to work for a certain length of time 
 may rescind the contract and recover the value of the services rendered 
 by him ; and the value of these services is to be ascertained without 
 any reference to the contract.' The master of an apprentice being en- 
 titled to his earnings, may recover them of the person for whom the 
 services were rendered, even where the employer had no knowledge of 
 the apprenticeship.* But in the action for enticing a minor son or an 
 apprentice from the service of his father or master, knowledge, of the 
 relation as still subsisting must be shown, and the fact of enticement 
 from the service due to the plaintiff.' 
 
 § 437. Under an agreement to work for so many days or months, for 
 a compensation which expressly or impliedly becomes due at the end of 
 the service, the work must be performed before any compensation can 
 be recovered ; the contract being entire, performance is a condition pre- 
 cedent to the right of recovery. The laborer must perform his contract, 
 like any other person ; and where he performs only a part of it, and 
 
 1 Williams v. Fincli, 2 Barb. 208. 
 
 2 Marsh v. Blackman, 50 Barb. 329. 
 
 8 Rhodes v. Rhodes, 3 Sandf. Ch. 279. 
 
 « Phillips V. Berger, 2 Barb. 608; S. C. 8 Barb. 527. 
 
 5 Clark V. Marsiglia, 1 Denio, 317; Goodwin v. Kirker, 2 Hilton, 401. 
 
 6 Wilson V. Martin, 1 Denio, 602, 605; Hamilton v. McPherson, 28 N. T. 72, 77; 
 Dillon V. Anderson, 43 N. T. 231, 237; Howard v. Daly, 61 N. Y. 302; Johnson v. 
 Meeker, 96 N. Y. 93; Roberts v. White, 73 N". Y. 37.5. 
 
 'Whltmarsh v. Hall, 3 Denio, 375; Derocher v. Continental Mills, 58 Me. 217; 4 
 Amer. R. 285; Vent v. Osgood, 19 Pick. 572; Myers v. Eehkopf, 30 111. App. 209; 
 Hagerty v. Nashua Lock Co., 62 N. H. 576. 
 
 8 .James v. Le Roy, 6 John. R. 274; Hiatt v. Gilmer, 6 Ind. 450; Munsey v. Good- 
 win, 3 N. H. 272. 
 
 9 Caughey v. Smith, 47 N. Y. 244; Butterfield v. Ashley, 6 Gush. 249. 
 
334 Law of Bailments. 
 
 then without cause or the consent or fault of the other pariy r.l), melons 
 the work, he eainiot recoNX-r on ;in implied assumpsit for the Liiior act- 
 ually peformecl. And the rule is the same where he engages to perform 
 an entire job of work.^ Rough language from the employer does not 
 release the laborer from his contract ; or from his duty to obey lawful 
 and reasonable commands.^ And though the contract be invalid be- 
 cause not in writing, the laborer is not at hberty to quit and recover 
 for the services rendered, so long as the employer fulfills the agreement 
 on his part." On a default by the employer to go on, a recovery may 
 be had for the services rendered.* 
 
 Under an agreement for a year's services, providing for a payment 
 of wages monthly or quarterly, the employee may recover the wages 
 earned and payable under the contract, without showing a subsequent 
 full performance ; and where he quits without cause before the end of 
 the year, he recovers the amount winch has become payable under the 
 contract, less the damages sustained by the breach of it. And the same 
 rule applies where the parties have adjusted the amount earned, and 
 the employer has given his note therefor, prior to the end of the 
 term.^ 
 
 § 408. Under a contract for a year's personal service, a failure to 
 perform on account of sickness or death relieves the employee from the 
 terms of the contract ; and the law gives him or his legal representative 
 a right to recover the value of the services rendered. The act of God 
 excuses performance of a condition ; so does the act of the law ; and 
 where valuable services have been rendered under the contract, the 
 employee recovers upon a quantum meruit.^ The law does not and 
 
 ' McMillan v. Vanderllp, 12 Jolan. lO.j; Jennings v. Camp, 13 John. 95; Lantry v. 
 Parks, 8 Cow. U3; Monell v. Burns, 4 Denio, 121; Reab v. Moor, 19 John. R. 337; 
 Diefenback v. Stark, 56 Wis. 402 ; Koplitz v. Powell, 50 Wis. 671 ; Nelichka v. Estarly, 
 29 Minn. 146; Earp v. Tyler, 73 Mo. 617; Powers v. Wilson, 47 Iowa, 666. He cannot 
 recover where he is dismissed for cause, before he is entitled to any wages under the 
 contract. Huntingdon v. Claflin, 10 Bosw. 202; ,S. ('. 38 X. T. 182. 
 
 2 Marsh v. Eulesson, 1 Wend. 514. 
 
 * Galvin v. Prentice, 45 N. Y. 162, contract for two years, invalid under the statute 
 of frauds. 
 
 * Monroe v. Butt, 8 Ellis & B. 738. 
 
 15 Thorp V. White, 13 John. E. 53; Hoor v. Clute, 15 John. E. 224; Oviatt v. 
 Hughes, 41 Barb. 541; Walker v. Millard, 2!) X. T. 375; Helm v. Wolf, 1 E. D. 
 Smith, 70. 
 
 8 Fahy v. North, 19 Barb. 341; Fenton v. Clark, 11 Yt. 557; Fuller v. Brown, 11 
 Mete. 440; Wolf v. Howes, 24 Barb. 174, 666; S. C. 20 X. Y. 197; Jones v. Judd, 4 
 N. Y. 411; People v. iraiming, 8 Cowen, 297; Carpenter v. Stevens, 12 Wend. 589. 
 See Spalding v. Rosa, 71 N". Y. 40, 44; Lacy v. Getman, 119 N. Y. 109, 114; Babcock 
 Y. Goodrich, 3 How. Pr. N. S. 53; Seymour v. Cogger, 13 Hun, 29. 
 
BA1L5IENTS FOK HlltE. 335 
 
 cannot give him the benefit of an actual performance ; ^ it proceeds 
 rather upon the theory of lui implied understanding, that the party 
 shall be excused in case he is unable to render his personal services 
 according to the contract. Where the services are of such a nature 
 that they can be, and they are performed for him by another, he may 
 recover the stipulated compensation ; ^ as he may, pro rata, where that 
 appears to be the fair value of his services.' 
 
 The contractor may also recover where performance of the work is 
 hindered or delayed by the employer or by those in his service, or left 
 unfinished at his request.^ If one contractor delays the work of 
 another, the delay is attributable to the employer, and is therefore 
 excused ; as it is where the employer orders a change in the amount or 
 mode of the work, and so delays its completion.'' 
 
 § 439. Each party must perform in the order of time required by 
 the contract ; and where by its terms the work is to be commenced 
 under the employer's direction, and for want of timely directions the 
 contractor is prevented from performing the work within the stipulated 
 time, and subsequently does the work at an expense enhanced in con- 
 sequence of the delay, he is not obliged under the old practice to bring 
 his action upon the contract, but may resort to the quantum mernit to 
 obtain his indemnity." Under the Code he alleges all the facts, the 
 contract, the delay and the increase of the expense caused by the delay; 
 and recovers damages for a breach of the contract.' Being prevented 
 from fulfilling the contract, after partly performing it, he is entitled to 
 recover ratably the stipulated compensation, or damages for a breach 
 of the agreement.^ And where the contract is departed from by mutual 
 consent, the work being partly done under its terms and partly in a 
 deviation from them, the payment is to be made according to the agree- 
 
 1 Tompkins v. Dudley, 25 N. Y. 272; Dexter v. Norton, 47 U". Y. 62. 
 
 2 Gray v. Murray, 3 John. Ch. 167, 179. 
 
 3 Clark V. Gilbert, 26 N. Y. 279; 5 Mich. 449; 27 Vt. 759. 
 
 * Devlin V. Second Ave. R. R. Co., 44 Barb. 81; Farnhamv. Ross, 2 Hall, 167; Van 
 Buskirk v. Stow, 42 Barb. 9; Russell v. Da Bandiera, 13 Com. B. K S. 148; Dannat 
 V. Fuller, 120 N. Y. 554. Wlien the agreement so provides, the delay of one contractor 
 will not excuse another. Shute v. Hamilton, 3 Daly, 462. 
 
 5 Stewart v. Keteltas, 36 N. Y. 388; Van Buskirk v. Stow, 42 Barb. 9; Weeks v. 
 Little, 89 N. Y. 566; Cooke v. Odd Fellows' Fraternal Union, 49 Hun, 23; Anderson 
 V. Meislahn, 12 Daly, 149. 
 
 6 Dubois V. Del. & Hudson Canal Co., 4 Wend. R. 285; S. C. 12 Wend. 334; 15 
 Wend. 87. 
 
 ' Allamon v. Mayor, etc., of Albany, 43 Barb. 33. He must perform or show excuse 
 for his failure. White v. Hewitt, IE. D. Smith, 395; Oakley v. Morton, 11 K. Y. 
 25; 4 Duer, 295. 
 
 8 Jones V. Judd, 4 N. Y. 411; Clark v. Mayor, etc., of Xew York, 4 N". Y. 338. 
 
336 Law of Bailments. 
 
 ment as far as it can be traced ; and beyond that according to the true 
 value of the work.^ 
 
 When the contractor abandons the contract while the work is in 
 progress on account of the employer's failure to furnisla the materials in 
 season, he recovers the contract prices for the work done, unless it is 
 shown that the work was rendered more expensive by the delay. Being 
 compelled to do the work at additional expense in a less favorable 
 season, he may recover what his work was reasonably worth ; in other 
 words, he recovers the contract prices where he works under the con- 
 tract, with such additional expenses as he incurs by the delay.^ This 
 appears to be the just and legal measure of damages. 
 
 § 440. When the work is to be finished by a given time and the con- 
 tractor fails to fulfill his stipulation in that respect, the employer does 
 not waive his right of action for damages by permitting the work to go 
 on after a breach ; nor does he preclude himself from setting up the 
 damages sustained by liim by way of recoupment, when sued for the 
 work and services ^ — a recoupment being considered in law as a partial 
 defense, to be pleaded."* A general denial in an action for services puts 
 in issue the fact of a substantial performance.^ A waiver of strict per- 
 formance as the work goes on, and a tacit extension of the time of per- 
 formance, will be deemed a waiver of damages on account of such 
 defect or failure in fulfilling the contract." So a departure from the 
 terms of the contract, at the request of the employer, excuses perform- 
 ance withhi the time ; ' and the giving of an acceptance or note for work 
 done under a contract, not called for by its terms, modifies the contract 
 in that respect ; it changes the time of payment.* ^V payment on 
 account of the work done has the same effect ; it cannot be recovered 
 back where the work actually rendered exceeds the payment in value.' 
 
 § 441. No action can be maintained for services rendered for a man 
 without his privity or request ; as where services are rendered volun- 
 
 1 HoUinsead v. Mactier, 12 Wend. 275; Clark v. Mayor, etc., of New York, 3 Barb. 
 288; 4 X. Y. .338; Van Buskirk v. Stow, 42 Barb. 9. 
 
 2 Koon V. Greenman, 7 Wend. 121; Meyer v. Hallock, 2 Eobt. 284. Wlien the em- 
 ployer orders the work stopped, the contractor may and must stop it. Goodwin t. 
 Kircker, 2 Hilton, 401; Clark v. Marsiglia, 1 Denio, 317; Lord v. Thomas, 64 N. Y. 
 107, 110; Parr v. Village of Grcenbush, 112 N. Y. 246. 
 
 8 Barber v. Rose, 5 Hill, 76; McKnight v. Dunlop, 5 N". Y. (1 Seld.) 537, 544; 11 
 N. Y. 347, 351; Whitbeck v. Skinner, 7 Hill, 53. 
 
 * McCullough V. Cox, 6 Barb. 386; Willis v. Taggard, 6 How. Pr. 433; 10 How. Pr. 
 71; Eldridge v. Mather, 2 Jf. y. 157; Gillespie v. Torrence, 25 X. Y. 306, 309. 
 
 ' Bellinger v. Craigue, 31 Barb. 534. 
 
 6 Meehan v. Williams, 2 Daly, 367; 42 Barb. 9; Smith v. Gugerty, 4 Barb. 014. 
 
 ' Green v. Haines, 1 Hilton, 254. 
 
 8 Walker v. Millard, 20 N. Y. 375. 9 gickels v. Pattison, 14 Wend. 257. 
 
Bailments fok Hike. 337 
 
 tarily to preserve a neighbor's house from destruction by fire ; ^ or 
 where services are rendered under circumstances which exclude and 
 repel the theory of an implied promise to pay for them.^ Measuring 
 the premises and procuring estimates with a view to make an offer to 
 erect a building are not regarded as services rendered on a request.' 
 Voluntary services rendered by the finder of goods in their preserva- 
 tion are considered meritorious, and ought to be paid for; and it 
 is thought the owner becomes legally bound to pay for them, on 
 taking back the goods thereby preserved.* The law does not imply 
 a contract to pay for board or for services rendered between mem- 
 bers of the same family, inasmuch as the relation often exists, and is 
 frequently continued after children come of age, where there is no 
 understanding or expectation of the kind.^ The law infers or refuses 
 to imply a contract, according to the actual intention of the parties ; " 
 and it gathers the evidence of the intent from the language and con- 
 duct of the parties. It infers a contract from a mutual understanding 
 that the services were to be compensated by a legacy or by the 
 devise of a farm.' It does not make, it ascertains and enforces the 
 agreement; and where it appears that the compensation was to be 
 made by will, and none is actually made, the value of the services may 
 be recovered. The implied contract takes effect and form from the 
 circumstances.' 
 
 § 442. Under a contract for the manufacture or construction of an 
 article, the work must be done according to the agreement, before the 
 employer can be compelled to accept it ; and where he accepts and uses 
 
 1 Bartholomew v. Jackson, 20 John. E. 28; Merritt v. American Dock & Trust Co., 
 36 State Rep. 428. 
 
 2 Livingston v. Ackeston, 5 Cow. 531; Demyer v. Souzer, 6 "Wend, 436; Davidson v. 
 Westchester Gas-Light Co., 99 N. Y. 558; McCarthy v. Mayor, etc., of N". Y., 96 
 N. T. 1. 
 
 » Topping v. Swords, 1 E. D. Smith, 609. 
 
 * See Sheldon v. Sherman, 42 N. T. 484; S. C. 42 Barb. 368; Redu v. Anderson, 4 
 Dana, 193; ante, § 20. 
 
 6 Williams v. Hutchinson, 3 N. Y. 312; Cropsey v. Sweeney, 27 Barb. 310; Robin- 
 son V. Cushmau, 2 Denio, 149; Lunay v. Vantine, 40 Vt. 501; Terry v. Bale, 1 
 Demarest, 452; Beardsley v. Hotchkiss, 96 N. Y. 201, 221; Carpenter v. Weller, 15 
 Hun. 134; Wilcox v. Wilcox, 48 Barb. 327; Lynn v. Smith, 35 Hun, 275; Guffln v. 
 First Nat. Bank, 74 111. 259; Smith v. Johnson, 45 Iowa, 308; Windland v. Deeds,- 44 
 Iowa, 98; Thorp v. Bateman, 37 Mich. 68; Wells v. Perkins, 43 Wis. 160. 
 
 " Whiting T. Sullivan, 7 Mass. 107; Updike v. Ten Broeck, 3 Vroom, N. J. 105. 
 
 ' Robinson v. Rayner, 28 N. Y. 494; Martin v. Wright, 13 Wend. 460; Eaton v. 
 Benton, 2 Hill, 576. See Davis v. Gallagher, 55 Hun, 593; Markey v. Brewster, 10 
 Hun, 16; 70 N. Y. 607; Green v. Roberts, 47 Barb. 521. 
 
 8 Smith V. Velie, 60 K. Y. 106; Shakespeare v. Markham, 10 Hun, 311, 322; Graham 
 T. Graham, 34 Pa. St. 475. 
 
338 Law of Bailments. 
 
 it, though unfinished, he must pay for it the stipulated price, after 
 deducting the cost of the work left undone.' The article being made 
 imder specifications, prescribing the dimensions and structure, and 
 delivered in apparent conformity with the contract, an acceptance of 
 the article without complaint and without any subsequent offer to 
 return it, is conclusive ; the employer cannot afterward refuse to pay 
 the purchase money." Havuig offered to return the article within a 
 reasonable time, he may recover his damages.' 
 
 After a mechanic has finished a carriage for a customer according to 
 his contract, and tendered a delivery of it, he is entitled to recover the 
 price agreed upon ; or he may sell it, and recover the difference between 
 the contract price and the actual sale.'' 
 
 § 443. Bailments for Services resumed. Excluding one feature from 
 the contract of bailment for labor and services, namely, the delivery of 
 the goods, the contract is to be enforced like an ordinary agree- 
 ment ; and hence where the property is lost by accident or destroyed 
 by fire, without fault on the part of the bailee, after services have been 
 bestowed upon it, the law allows a recovery for the work done.^ It 
 allows a recovery as in other cases disconnected with a bailment ; upon 
 the same principles which are applied to an ordinary contract, and sub- 
 ject to the same defenses.^ If the work be commenced under a special 
 contract, as repairs upon a vessel under a specific agreement, and the 
 special agreement is departed from as the work proceeds by the mutual 
 consent of the parties, a recovery may be had under the contract as far 
 as it has been performed, and for the new work upon a quantum 
 meruit.'' 
 
 § 444. The baUee for work and services is bound to take reasonable 
 care of the goods or chattels entrusted to him ; namely, that care which 
 the nature of the property and the circumstances call for.' And he im- 
 
 1 Vanderbilt v. Eagle Iron "Works, 25 Wend. 665. 
 
 2 Neaffie v. Hart, 4 Lans. 4; Howard v. Hoey, 23 Wend. 350; Eeed v. Randall, 29 
 N. T. 358. 
 
 8 Messmore v. The N. T. Shot & Lead Co., 40 N. T. 422. As to the nature of the 
 contract, see ante, §§ 411, 412, 413. 
 
 4 Bement v. Smith, 15 Wend. 493; 16 N. T. 582, 585; Pollen v. Le Roy, 30 N. T. 
 549; 10 Bosw. 130, 105; 58 Barb. 448. 
 
 ^ Menetone v. Athawes, 3 Burr. 1592. A loss by fire or a loss by a violent storm 
 excuses a bailee for hire. Ames v. Belden, 17 Barb. 513. 
 
 ^ Famsworth v. Garrard, 1 Campb. 38; Kuehn v. Wilson, 15 Wis. 104. 
 
 'Eobson V. Godfrey, 1 Stark, E. 220; Pepper v. Burland, Peake N. P. C. 103; 
 Ellis V. Hamlet, 3 Taunt. E. 52. 
 
 8 Lechv. Maester, 1 Campb. 138; Clark v. Eamshaw, 1 Go-w E. .30; Stewart v. Stone, 
 127 N. T. 500, 505; Gleason v. Beers, 59 Vt. 581; Kelton v. Taylor, 11 Lea (Tenn.), 
 264. 
 
Bailments foe Hlre. 339 
 
 pliedly engages to perform the services to be rendered upon them, in a 
 skillful and workmanlike manner. By receiving the goods or chattels 
 to be made or repaired in the line of his business, he is understood to 
 engage that he possesses and will exercise the requisite skill.^ He 
 cannot recover for unskillful services ; and he is liable in damages for 
 his failure to fulfill the contract.* 
 
 The skill demanded must be measured by the dif&culty and delicacy 
 of the work to be done, because the bailee for hire is bound to apply a 
 degree of skill equal to his undertaking ; " whether it be to repair a watch 
 or make a telescope. Ordinary skill in the making of delicate instru- 
 ments of science, music and the higher arts may be, with reference to 
 other branches of industry, a high order of skill ; but the standard of 
 skill exacted by the law is that which is common and ordinary in the 
 particular work or business undertaken. 
 
 § 445. Since the obligation to possess and exercise skill springs out 
 of a man's calling, employment or business, it is quite clear that an un- 
 skillful man is not liable in damages for his defective work, when em- 
 ployed in a business which he does not follow. The employer knowing 
 his lack of skill, cannot complain of his ill success ; * he falls under the 
 oracular sentence cited from the Mohammedan law : " A man who had a 
 disorder in his eyes called on a farrier for a remedy ; and he applied to 
 them a medicine commonly used for his patients ; the man lost his sight, 
 and brought an action for damages ; but the judge said, no action lies, 
 for if the complainant had not been himself an ass, he would never have 
 employed a farrier." ^ And yet a pretender is liable, where he presses 
 himself into an engagement, or takes upon himself a business of his 
 own wrong, excluding a competent person ; * he is liable for the injury 
 he inflicts where he administers medicine or undertakes an operation 
 upon a servant or child without employment ; ' and whether educated 
 or not, he is criminally liable when found guilty of gross rashness in 
 the application of a remedy, and death ensues.' 
 
 1 2 Kent's Comm. 588; 3 Black. Comm. 165; Dale v. See, 51 N. J. L. 378; Keith v. 
 Bliss, 10 111. App. 424. 
 
 2 Denew v. DaTerell, 3 Campb. 451; 7 East, 479; ante, §§ 426-430. 
 8 Cowen's Tr. 70. 
 
 * Ritchey v. West, 23 111. 385. 
 
 5 Jones on Bailm. 100. « Euddock v. Lowe, 4 P. & F. 519. 
 
 ' Hook V. Grimes, 13 B. Mon. 188. 
 
 ' A person acting as a medical man, whetlier licensed or unlicensed, is not crimi- 
 nally responsible for the death of a patient occasioned by his treatment, unless his 
 conduct is characterized either by gross ignorance of hig art or gross negligence. But 
 when a person undertaking the cure of a disease, whether he has received a medical 
 education or not, is guilty of gross rashness in the application of a remedy, and death 
 
340 Law of Bailments. 
 
 § 446. Bailees for work and services must use tiie same care and 
 diligence in keeping the property which prudent and cautious men 
 take of their own. A loss unexplained raises a presumption that it 
 must have occurred through negligence ; ^ and a return of goods in a 
 damaged condition, after proof that they were delivered in good order, 
 imposes upon the bailee the burden of proving that he used due and 
 reasonable care of them.^ Evidence showing a loss by robbery excuses 
 the bailee ; = but evidence showing simply a loss, or a failure to return 
 the goods, or a theft of them by the bailee's servant, does not of itself 
 excuse; the bailee must exculpate himself by showing that the loss 
 occurred without any want of diligence on his part.* In other words, 
 he must account for the property ; he must show that it was lost or 
 injured by causes for which he is not answerable.^ 
 
 § 447. Fulfillment of the Contract. The bailee must fulfill the stip- 
 ulations of his contract, to the same extent as any other party ; and 
 hence his right to recover for services depends upon his performance 
 accorduig to the true intent of the contract. His interest in the prop- 
 erty accrues upon such performance, and the contract being entire, his 
 right to recover for his services must ordinarily accrue upon the same 
 implied condition.^ So long as the work was in progress, in accord- 
 ance with the terms of the agreement, the owner retains his title and 
 the bailee his interest and rights under the contract.' X transfer of 
 
 ensues in consequence, lie is liable to be convicted of manslaughter. Rex v. John 
 St. John Long, 4 Carr & Payne, 423; Rex v. Williamson, o C. & P. 63.>; Rex v. Van 
 Butchell, 3 C. & P. (i29. Laiv shows no favor to quacks: Rex v. Spriller, 5 C. & P. 
 S33 — case of a corrosive plaster placed on the head of a child ; Rex v. Martin, 3 C. & 
 P. 211, case of a child killed by giving it gin to drink. 
 
 1 Cairns v. Robuas, 8 JI. & W. 25S; Reeve v. Palmer, 5 C. B. N. S. 84; Gleason v. 
 Beers, .59 Vt. 5sl; Taussig v. Schields, 26 Mo. App. 318; Fairfax v. New York Cent. 
 & H. R. R. R. Co., 07 N. T. 11; Stewart v. Stone, 127 X. Y. 500, 506. 
 
 2 Funkhouser v. Walker, 62 111. 59; ante, § 3."j4; 79 Penn. St. 471. 
 
 'Walker v. British Guarantee Ass., 21 Law J. Q. B. 200; 18 Q. B. 277; Levy v. 
 Bergeson, 20 La. Ann. 290, 297. 
 
 * Clark V. Earnshaw, Gow. 30; Finucane v. Small, 1 Esp. 315; 4 Taunt. 787; Hal- 
 yard V. Dechelman, 29 Mo. 459. See Xelton v. Taylor, 11 Lea (Term.), 264; a case 
 of the miexplained loss of a bale of cotton left by the cotton ginner in an inclosed 
 gin lot containing a house occupied by his hands. 
 
 li Waller v. Parker, 5 Coldw. (Tenn.) 470; Hillyard v. Crabtree, 11 Texas, 264; 
 Spangler v. Eicholtz, 25 111. 297; Con well v. Smith, 8 Ind. 530; Gleason v. Beers, 59 
 Vt. 581. 
 
 " Pierce v. Schenck, 3 Hill, 28; Gregory v. Stryker, 2 Denio, 628; Tripp v. Riley, 15 
 Barb. 333. He cannot limit or qualify his liability for defective workmanship by a 
 notice given to the owner of the goods at the time of their return, or with the bill for 
 the work done, although the owner accepts the goods with knowledge of the contents 
 of the notice. Dale v. See, 51 K. J. L. 378. ' Mallory v. Willis, 4 N. y. 76. 
 
Bailjients for Hike. 341 
 
 tlie property by the bailee, made in good faith after a part of the work 
 has been done, does not affect the owner's title ; it neither increases nor 
 diminishes his interest in the goods. ^ A transfer to a party acting 
 in bad faith, in fraud of the owner's rights, will not vest any interest 
 in the transferee ; and it is adjudged that a wrongful possession of 
 chattels cannot be transmuted into a title of any kind by a process of 
 manufacture.* The intentional wrong-doer does not stand in as favor- 
 able a light as an involuntary wrong-doer ; the measure of damages 
 against him is more strict.' 
 
 When materials are manufactured on shares, the manufacturer's 
 title accrues as against the general owner, on his fulfillment of the con- 
 tract ; * and his special property accrues at once as against third parties.^ 
 That is to say, the contract conveys a present interest which may be 
 defended by the bailee against all third parties, and against the owner 
 pending the progress of the work ; ' and an absolute title to his share 
 when the work is finished.' 
 
 § 448. The law allows the bailee for services to hold the goods re- 
 paired or manufactured by him, as security for his reasonable charges ; 
 it gives him a lien on them which cannot be defeated by the owner or 
 by his creditors.* In one sense the lien arises out of the contract ; it 
 is given to the party employed to do the work, and is accessory to the 
 right of compensation for the services ; it does not arise in favor of a 
 party employed by the bailee.' And it does not arise against the 
 true owner where the work is done without his knowledge or consent, 
 express or implied." 
 
 Being called upon for the property, the bailee should at once assert 
 his lien, and give an accurate statement of his charges. A general 
 refusal to surrender the goods, on the bailor's demand, accompanied 
 by a claim that they belong to a third person, is treated as a waiver of 
 
 1 Hyde V. Cookson, 21 Barb. 92; Wood v. Orser, 25 N. T. 348. 
 
 2 Silsbury v. McCoon, 3 N. T. 379. 
 
 ' Baker v. Wheeler, 8 Wend. 505 ; Brown v. Sax, t Cowen, 95. 
 
 * Eightmyer v. Raymond, 12 Wend. 51. 
 
 5 Eaton V. Lynde, 15 Mass, 242. 
 
 « Burdict v. Murray, 3 Vt. 302; Eaton v. Lynde, 15 Mass. 242. 
 
 ' Ante, §§ 416, 417, 418. 
 Moore v. Hitchcock, 4 Wend. 292. 
 
 8 Hollingworth v. Dow, 19 Pick. 228; Eaton v. Lynde, 15 Mass. 242. The party 
 working on shares may give a third person an interest in his share. Tripp v. Eiley, 15 
 Barb. 333; Putnam v. Wise, 1 Hill, 234. 
 
 1° Clark V. Hale, 84 Conn. 398; Small v. Kobinson, 69 Me. 425. And see Sargent y. 
 Usher, 55 N. H. 287; Gilson v. Gwinn, 107 Mass. 126; Globe Works v. Wright, 106 
 Mass. 207. 
 
342 Law of Bailments. 
 
 the lien ; the bailee by such refusal makes himself a party to the con- 
 troversy, and must stand or fall by the title he asserts.' Of course a 
 surrender of the goods to the true owner will protect him agaiast his 
 bailor.^ 
 
 § 449. There is no lien under the common law for work done or 
 materials furnished in the erection of an edifice upon real estate. It 
 is the statute which gives the lien and provides the mode in which it 
 may be enforced. The reason of the statute is the same as that which 
 supports the rule giving a bailee a lien for . his labor and materials. 
 The remedy is different. The bailee for services has simply to hold 
 the goods as a pledge for the payment of the demand due to him ; 
 while the mechanic or material man must, in order to create a lien for 
 the value of his labor and materials furnished and bestowed in the 
 erection or repair of buildings, follow strictly the provisions of the 
 statute ; and must afterward foreclose his lien in the manner pointed 
 out by the statute. The proceediag has both the advantages and the 
 defects of a statutory remedy " 
 
 iHolbrook v. "Wight, 24 Wend. 169; Everett v. Coffin, 6 Wend. 603; Picquet v. 
 McKay, 6 Blackf. 465. A tender of the amount due discharges the lien; La Motte v. 
 Archer, 4 E. D. Smith, 46; the tender must cover the interest, where interest is due; 
 Heins v. Peine, 6 Robt. 420. 
 
 2 Western Trans. Co. v. Barber, 56 K. T. 544, 552; ante, § 353. 
 
 8 Kerby v. Daly, 45 N. T. 84; Seals v. Cong. B'nai Jeshurun, 1 E. D. Smith, 654, 
 687; Blauvelt v. Wordsworth, 31 N. Y. 285; Hauptman v. Catlin, 20 K.T. 247; Eol- 
 lin V. Cross, 45 N. Y. 766. 
 
Or Innkeepebs. 343 
 
 CHAPTER VII. 
 
 OF INTSTKEEPERS. 
 
 § 450. Any one who makes it his business to entertain travelers and 
 passengers, and provide lodging and necessaries for them, their horses 
 and attendants, is a common innkeeper ; and it is no way material 
 whether he have a sign before his door or not.^ The keeping of an inn 
 is not a franchise, but a lawful trade open to every person.^ The busi- 
 ness is regulated by statute, and it has been treated in this State as a 
 franchise only where there has been granted to the innkeeper the privi- 
 lege of Selling strong and spirituous liquors and wines to be drank in 
 his house. The license is required as a mode of regulating the sale of 
 liquors to be used as a beverage, and where no such sale is intended 
 there is no need of any license." 
 
 § 451. In regard to these licenses, which are but incidentally connected 
 with our subject, precisely as the retail of spirituous liquors is but an 
 incident to the business of an innkeeper, it is to be noticed that they 
 are granted by the authority of a positive law, and derive their value 
 from the fact that all other sales, less than a given quantity, are by 
 the same law prohibited. The license confers a franchise ; and the 
 prohibitions of the statute convert the franchise into a monopoly. The 
 State acts on the theory that it is under an obligation to restrain the 
 evils likely to flow from an unlimited traffic in spirituous liquors ; and 
 provides by law that the retail sale shall be made discreetly, by men 
 carefully chosen for that purpose, on account of their good moral char- 
 acter. All other sales it prohibits under severe penalties, and renders 
 
 1 Bac. Abr. tit. Inns and Innkeepers, B.; Dickerson v. Rogers, 4 Humph. (Tenn.) 
 179; Mowers v. Fethers, 61 N. Y. 34, 37. 
 
 2 Overseers, etc., of Crown Point v. Warner, 3 Hill, 150; People v. Murpliey, 5 Par- 
 ker Cr. 130. 
 
 ' Mayor, etc., of New York v. Mason, 4 E. D. Smith, 142; The People v. Jones, 54 
 Barb. 311. The rule is different in some of the States ; Curtis v. Ohio, 5 Ham. R. 324. 
 An unlicensed house at which transient guests and regular boarders are entertained is 
 an inn. Foster v. State, 84 Ala. 451 ; Attwater v. Sawyer, 76 Me. 539. By applying 
 for and obtaining a license to sell intoxicating liquors as a hotel-keeper, the licensee 
 may subject himself to the common law liabilities of an innkeeper, where but for the 
 license he might deny the keeping of a hotel. Kopper v. Willis, 9 Daly, 460. 
 
344 Law op Bailments. 
 
 them illegal.^ It allows no action on the contract ; ^ or by the payee 
 on a note given for the purchase money." It prohibits sales to any 
 child actually or apparently under the age of sixteen years, or to any 
 intoxicated person, pauper, habitual drunkard, or Indian, or to any 
 person to whom the licensee may be forbidden to sell by a notice 
 in writing from the parent, guardian, husband, wife or child of such 
 person ; * and in several of our States the statute renders the seller, as 
 well as the owner of the premises occupied by him, liable in damages 
 resulting to the employer or to any member of the family of the per- 
 son who becomes intoxicated by the licensed sale of liquors to him ? 
 liable to the extent of the damages suffered by the sale of the liquors 
 causing the intoxication, and the consequent damages. The intent of 
 the statute apparently is, to make it the interest of the seller to pre- 
 vent his customers from drinking to intoxication ; or to stimulate him 
 m his duty to sell with discretion.^ And it is adjudged that the 
 hcense to sell at retail does not so far render the sale legal as to pre- 
 vent the seller's being held liable for an abuse of his privilege ; and 
 for damages quite remote from the negligent sale.'' 
 
 § 4.52. A license to sell liquors at retail will protect an agent or clerk 
 actually making the sale ; but no one can excuse himself from liability 
 by showing that he acted as a clerk of an unlicensed person, in a sale.' 
 The license to sell is a personal trust, and cannot be assigned to another ; 
 hence one who purchases a tavern and receives from the grantor permis- 
 sion to sell under his license, cannot continue the business of selling and 
 defend himself against an action to recover the penalty for selling liquors 
 without a license, by proving such permission.* 
 
 1 Grifflth V. Wells, 3 Denio, 227; Board of Excise of Ont. Co. v. Garlinghouse, 45 
 N. Y. 249. 
 
 2 Best V. Bauder, 29 How. Pr. 489. Laws of 1892, Chap. 401, § 40. 
 
 3 Coburu V. Odell, 10 Foster N^. H. 540; Perkins v. Cummings, 2 Gray, 2.5S; Hub- 
 bell Y. Flint, !?• Gray, 27Y. All securities given for any debt contracted for the pur- 
 chase of intoxicating liquor on credit are void. Laws of 1892, Chap. 401, § 40. 
 
 •• Laws of 1892, Chap. 401, § 32. 
 
 5 The Civil Damage Ac*; was adopted in this State in 1873. It is entitled, "An Act 
 to Suppress Litemperance, Pauperism and Crime." Ch. 640. It has to a considerable 
 extent been modified by subsequent legislation although not expressly repealed. Laws 
 of 1892, Chap. 401, § 40; id. Chap. 403, § 2. 
 
 « Baker v. Pope, 5 N. T. Sup. Ct. 102; .Jackson v. Brookins, 12 N. T. Sup. Ct. .530, 
 332; Hayes v. Phelan, 11 N. Y. Sup. Ct. 733; 8(.-bneider v. Hosier, 21 Ohio St. 98; 33 
 Wis. 107, 154, .570; Chicago Legal Ne,ys, Aug. 1, 1874; Bertholf v. O'Reilly, 74 X. T. 
 509; Neu v. McKechnie, 95 N. Y. 632; Mead v. Stratton, 87 N". Y. 493; Davis v. 
 Standish, 26 Hun, 608. 
 
 ' Board of Excise v. Dougherty, 55 Barb. 332. A husband is liable for a penalty in- 
 curred by the wife's sale; Coms. of Excise v. Keller, 20 How. Pr. 280. 
 
 8 Alger T. Weston, 14 John. E. 231. 
 
Of Innkeepers. 345 
 
 Under the statutes of this State, when a justice of the peace becomes 
 an innholder or a tavern-keeper, he is thereby disqualified from com- 
 mencing any new civil business as a justice ; and being a tavern-keeper 
 and licensed to sell, he is held eligible to the office ; as the court said 
 in one case, the statute " left it open to the people of the town, if such 
 be their will, to have rum and justice dispensed at the same place and 
 by the same hand." ^ By a subsequent amendment, this freedom is 
 taken from the people. A tavern-keeper cannot now exercise the civil 
 jurisdiction of S, justice of the peace. ^ 
 
 There is also another provision of our statutes, which deserves to be 
 noticed, prohibiting an innholder or tavern-keeper from recovering the 
 purchase price of any sale on credit of any strong or spirituous liquors, 
 wine, ale, or beer, to be drunk on the premises where sold. Such debts 
 cannot be recovered ; and all securities given for them are declared 
 void.' 
 
 § 453. The words hotel and inn have very nearly the same history, 
 and still retain in literature some touch of sentiment derived from their 
 original sense ; they have a suggestive sense which does not belong to 
 the word tavern; and yet these several words are now often used inter- 
 changeably, as synonymous terms.* The keeper of a tavern has the 
 same rights and is under the same liabilities as an innkeeper, where he 
 
 1 Pannalee v. Thompson, 7 Hill, 77. 
 
 2 Kice V. Milks, 7 Barb. 337; Clayton v. Per Dun, 13 Johns. 219; Code of Civil Pro- 
 cedure, § 2866. 
 
 8 Laws of 1892; Chap. 401, § 40. 
 
 * Overseers, etc., of Crown Point v. Warner, 3 Hill, 150; Wortham v. Comm'th, 5 
 Eand. 669; Linkous v. Comm'th, 9 Leigh's E. 608; Cromwell v. Stephens, 2 Daly, 15. 
 Hotels and inns have a parallel history; in France the hotel was at an early day the 
 palace or dwelling-house of a prince or lord, in which he was accustomed to entertain 
 travelers and strangers ; and the inn in England seems to have been originally the 
 town-house of a nobleman, bishop or other distinguished personage, in which he re- 
 sided and entertained his followers, when he attended court ; thus Warwick, the king- 
 maker, whilst he resided in London, a city which he loved and courted, kept open 
 house for the humbler sort of people, and free board for all comers, roasted six oxen 
 for every meal, so that each guest might carry off as much meat with him as he could 
 stick upon a large dagger; and such was his hospitality, that it was a saying current 
 in his time, that thirty thousand men were fed by him on his various domains and in 
 his numerous castles. As the commons grew in importance, common inns took the 
 place of ducal and baronial halls, till by degrees the hospitable monastery and the 
 castle of the nobleman were no longer frequented by the traveler, as a place of enter- 
 tainment and rest on his journey ; so that finally the old hospitality was superseded by 
 the age of commerce and civil freedom. Gray's Inn and Lincoln's Inn, designating, 
 it is said, the residence of the families whose names they bear, are still left as a kind 
 of fossil history of the old time, and origin of our public houses. (2 Michelet's His- 
 tory of France, 319; Webster's Dictionary.) 
 
346 Law op Bailments. 
 
 furnishes beds, provisions and entertainment for all persons paying for 
 the same, without f urnishuig accommodations for carriages and liorses.' 
 So is the keeper of a hotel, who furnishes the same accommodations 
 with the same exception ; ^ and the rule is the same where he keeps 
 a hotel on the European plan, providing his guests with lodgings for 
 uncertain periods and keeping a refectory on the premises where they 
 may at their option take their meals, and pay for them, then and 
 there." It is the business which fixes the character of the house : a man 
 is liable as an innkeeper, where he keeps a house for the reception and 
 entertainment of all comers, but more especially for the accommodatiou 
 of a class known as emigrants, guests entertained from day to day.* 
 He does not become thus liable where he merely keeps a restaurant ; or 
 where he keeps both a public house and a restaurant, and merely re- 
 ceives a person at a table for a meal.^ And he does become liable as an 
 innkeeper, where he receives lodgers and furnishes them with meals, 
 without any previous agreement as to the duration of their stay or the 
 terms of their entertainment." 
 
 § 454. The keeper of a cofEee-house, a boarding-house or lodging-house 
 is not an innkeeper, because he does not keep a public house of general 
 entertainment for all who choose to visit it ; and does not enter upon 
 the business of keeping a common inn.' Where he really keeps an ion, 
 though under the name of a cofEee-house, and conducts his business as 
 an innkeeper, he is liable in that capacity ; * and he is not so Uable where 
 he simply receives lodgers and boards them under special contracts for 
 a limited time, or where he simply lets rooms by the day or the week, 
 and does not otherwise provide for their entertainment.' 
 
 § 455. Who are Guests ? The answer to this question generally de- 
 termines in whose favor ah action may be' maintained against an inn- 
 keeper. A stranger, a traveler, and all persons entertained at a common 
 
 1 Thompson v. Lacy, .3 Barn. & Aid. 283. 
 
 2 Jones V. Osbom, 2 Chitty E. 484. 
 
 " Krohn v. Sweeney, 2 Daly, 200. See Kopper v. "Willis, 9 Daly, 460; Kom v. Sched- 
 ler, 11 Daly, 234. 
 
 * Willard v. Klieinliardt, 2 E. D. Smith, 148. 
 
 5 Carpenter v. Taylor, 1 Hilton, 193. See Kopper v. Willis, 9 Daly, 460; Korn v. 
 Schedler, 11 Daly, 234. A person may let the upper rooms of a building to lodgers, 
 and lease the lower rooms to the keeper of a restaurant without acquiring the rights 
 of an innkeeper. Cochran v. Schryver, 12 Daly, 17. 
 
 8 Wintermute v. Clarke, 5 Sandf. 242; Taylor v. Monnot, 4 Duer, 116. 
 
 '' Doe V. Lansing, 4 Campb. E. 77; Calye's Case, 8 Co. R. .32; Dausey v. Richardson, 
 2 Ellis & Black. 144. 
 
 8 Thompson V. Lacy, 3 Barn. & Aid. 283; 2 Daly, 1.5; Smith v. Scott, 9 Bing. 14; 2 
 Moo. & S. 35. 
 
 ' Cromwell v. Stephens, 2 Daly, 15; Parkliurst t. Foster, 1 Salk. 3S7; 5 Sandf. 242. 
 
Of Innkeepers. 347 
 
 inn, tavern, or hotel, are deemed guests ; and on that account entitled to 
 hold the innkeeper to his strict common law liability.^ 
 
 It appears from the original writ used against an innkeeper, which 
 was the foundation of the common law on this subject, that the com- 
 mon inn was instituted for passengers and wayfaring men, being termed 
 diversorium, because he who lodges there is quasi divertens se a via; and 
 hence a neighbor who lodges with the innkeeper as a friend, is not 
 deemed a guest.^ The writ was founded on the custom of the realm, 
 according to the tenor of which the keeper of an inn for the entertain- 
 ment of travelers, was bound to take care of the goods and chattels of 
 his guest, within his inn, without loss or damage, so that no injury 
 should arise by any means through his default, or that of his servants.* 
 The action against the innkeeper was not, however, confined to the 
 guest himself ; for it was early held that a master may maintain an 
 action against an innkeeper, on the general custom, for money lost 
 while his servant was the innkeeper's guest ; ^ and for goods lost under 
 the same circumstances.' In more recent cases, it is adjudged that the 
 owner may recover for goods entrusted by his servant, as a guest, to 
 an innkeeper ;^ and also, where the servant was robbed of his master's 
 money, though the master was a corporation that could not in fact b© 
 the guest of an innkeeper.' An agent or friend, being a bailee of the 
 money or goods, may also maintain an action for them.' And a bailee 
 
 ^ Bac. Abr, tit. Inns and Innkeepers, c. 5, 6. 
 
 ^ Calye's Case, 8 Rep. 32. In a recent case it was held that a guest is a traveler or 
 transient person who puts up at an inn for a lawful purpose ; and that a neighbor 
 who registers a prostitute as his wife and occupies a chamber with her, is not a guest. 
 Curtis V. Murphy, 63 Wis. 4. A person who goes to a hotel and dines at the invita- 
 tion and at the expense of a guest of the house, is not himself a guest. Gastenhofer 
 V. Clair, 10 Daly, 265. 
 
 *Bedle v. Morris, Cro Jac. 224; Cross v. Andrews, Cro. Eliz. 622. 
 
 * Bedle v. Morris, Cro. Jac. 224. 
 
 * Bennett v. Mellor, 5 Term. R. 2Y3; Piper v. Manney, 21 Wend, 282; Needles v. 
 Howard, 1 E. D. Smith, 54. 
 
 « Mason v. Thompson, 8 Pick. R. 280. 
 
 ' Towson V. The Havre de Grace Bank, 6 Harr. and John. 47; Berkshire Woolen 
 Co. V. Proctor, 7 Cush. 417, 424. Where an agent or servant of a corporation, in its 
 employment, becomes the guest of an innkeeper and is robbed of his principal's money, 
 the principal is entitled to recover on the same ground and under the same rule of 
 law, as though he or it were the guest. In Bedle v. Morris, Telv. 162, the court say : 
 "And moreover it is not material whether he was his servant or not; for if it was hia 
 friend by whom the party sent the money, and he is robbed in the inn, the owner shall 
 have the action." S. C. Cro. Jac. 224. The innkeeper's liability for money lost in 
 his house is not limited to sums necessary and designed for ordinary traveling 
 expenses. 
 
 ' Kellogg v. Sweeney, 1 Lansing, 397. 
 
348 Law of Bailments. 
 
 of the goods for hire, is the only person entitled to hold the innkeeper 
 under the strict rule of the common law.^ He is the party in posses- 
 sion. 
 
 § 456. It is a question of fact whether or not a man is to be deemed 
 a guest, in the legal sense of that term, where he sojourns for some time 
 in a house which is kept both as a boarding-house, and as a common 
 inn for transient guests. He is to be deemed a guest, though he eats at 
 the table set for the weekly boarders, where he is not notified of the 
 usage of the house.^ Received as a boarder, he cannot be treated as a 
 guest ; he is not subject to the liabilities, nor is he entitled to the pro- 
 tection of a traveler." Being received as a guest, and being in reality 
 a traveler, he does not lose his relation or rights, by making a contract 
 for his board by the week.'' And yet it is quite evident that he must 
 cease to be a guest where he sojourns for a definite period or for a sea- 
 son in a public house, under a special agreement defining his accommo- 
 dations and fixing the price of his board, as with ordinary boarders. 
 Mere lapse of time will not have the same effect, nor will, the fact that 
 the traveler has reached the end of his journey and is no longer a way- 
 faring man. The circumstances, the duration of the sojourn, and the 
 nature of the contract, are to be considered.* 
 
 § 457. The attendants at an evening ball given at an inn, are not 
 travelers, and they are not guests, where the innkeeper by an agreement 
 with a company furnishes rooms and supper for a certain price, and 
 tickets are issued and sold at so much each, to the members and friends 
 of the company. The special contract creates a new and different re- 
 lation from that which ordinarily arises between the innkeeper and his 
 guest." 
 
 When a special agreement is made with an innkeeper, specifying the 
 accommodations to be furnished, and the terms for certain days m 
 the week, in the prosecution of a special business, the relation is not 
 that of innkeeper and guest.' The relation is also modified when the 
 agreement transfers the innkeeper's duty to the guest ; as where the 
 
 1 Coykendall v. Eaton, 55 Barb. 188; 37 How. Pr. 438; 40 How. Pr. 266. 
 
 2 Hall V. Pike, 100 Mass. 495. 
 
 3 Chamberlain v. Masterson, 26 Ala. 371 ; Ewart v. Stark, 8 Rich. 423. 
 
 * Berkshire Woolen Co. v. Proctor, 7 Cush. 417, 423; Pinkerton >. Woodward, 33 
 Cala. 557; Norcross v. Norcross, 53 Maine, 163; Hancock v. Rand, 94 N. T. 1; Boss 
 v. Mellin, 36 Minn. 421; Beal v. Posey, 72 Ala. 323. 
 
 ^ Bacon's Abr., tit. Inns and Innkeepers, c. 5 and 6; Roll. Abr. 3; Mowers y. 
 Pethers, 61 N. T. 34.. See Moore v. Long Beach Development Co., 87 Cal. 483. 
 
 « Carter v. Hobbs, 12 Mich. 52; Pitch v. Casler, 17 Hun, 126. 
 
 ' Washburn v. Jones, 14 Barb. 193; distinguished in Mowers v. Fethers, 61 X. T. 
 34; 6 Lansing, 112, reversed. 
 
Op Innkeepees. 349 
 
 latter hires a room for the purpose of exhibiting and selling goods, 
 and takes the key and with it the personal care of his property.^ 
 
 § 458. A person becomes a guest by entering an inn and obtaining 
 refreshments of any kind ; as where he purchases liquors, and lays 
 down goods or parcels by his side, or deposits them in the proper place 
 while he stops. A formal delivery of the goods to the innkeeper is not 
 required.^ Having become a guest, the relation continues until it is 
 severed by some act showing an intention to leave without returning.* 
 E. ff; if a traveler, having become a guest at an inn, leave his horse 
 there and go out to dine or lodge with a friend, he does not thereby 
 cease to be a guest ; and the better opinion is that he is to be deemed a 
 guest, where he leaves the inn to go to another town to be absent some 
 days, leaving behind property for the care and keeping of which the 
 host is to receive a compensation.* But a man does not become a guest, 
 by sending his horse to an inn to be kept at his expense.^ And where 
 being a guest, he pays his bill and leaves an inn, permitting his baggage 
 to remain, the relation ceases, and with it the innkeeper's liability ; so 
 that for any subsequent loss he is ■ answerable only as an ordinary 
 bailee." 
 
 The innkeeper's liability commences as soon as a traveler takes a 
 
 ^ Burgess v. Clements, 4 Maule & Selw. 306. In this case the guest obtained a 
 private room in an inn, selected by himself for the purpose of exhibiting to his cus- 
 tomers his goods, jewelry, and was permitted to take the key that he might lock the 
 door when he went out. Omitting to do this the goods were stolen; and it was left 
 to the jury to determine whether under the circumstances of the case the plaintiff had 
 not discharged the defendant, or assumed the care of his own property, and held well 
 submitted. In Mowers v. Fethers, supra, the owner of a stallion hired a stall for him 
 on certain days of the week and board for his keeper, and the latter took care of the 
 horse and kept the key of the stable ; and it was held that the relation of innkeeper 
 and guest did not arise. 
 
 2 Bennett v. Mellor, 5 Term K. 273; McDonald v. Edgerton, 5 Barb. 560; Clute v. 
 Wiggins, 14 John. R. 175; Peet v. McGraw, 25 Wend. 653. 
 
 8 McDaniels v. Robinson, 26 Tt. 316; 5 Sandf. 242. 
 
 4 Yorke v. Grindstone, 1 Salk. .388; 2 Ld. Eaym. 866; Gelley v. Clark, Cro. Jac. 
 188; Murray V. Clarke, 2 Daly, 102; Allen v. Smith, 12 Com. Bench, IT. S. 638; 104 
 Eng. Com. L. 
 
 6 GrinneU v. Cook, 3 Hill, 485; Ingallsbee v. Wood, 36 Barb. 452; S. C. 33 N. T. 
 577; Daniels v. Robinson, 28 Vt. 387; Healey v. Gray, 68 Me. 489. A pedler who 
 goes to a hotel and without calling for a room, or obtaining food or drink, leaves his 
 pack in the storeroom with the consent of the innkeeper, does not become a guest. 
 Toub V. Schmidt, 60 Huu, 409. 
 
 « Miller v. Peeples, 60 Miss. 819; O'Brien v. Vail, 22 Fla. 627; Wintermute v. 
 Clarke, 5 Sandf. 242; 42 How. Pr. 378; where a guest takes and pays for his room for 
 the day, and his baggage is to be sent to a boat at evening, the relation continues. 
 Giles V. Fauntleroy, 13 Md. 126 
 
350 Law op Bailments. 
 
 carriage provided by the innkeeper to carry guests to and from the 
 ears.^ And where a man comes to an inn and leaves his goods and 
 horses, and goes into the town saying that he will return at night, and 
 afterwards returns, his goods having been in the mean time stolen; he 
 has his remedy against the innkeeper. He is a guest in such a sense 
 that he is entitled to recover the value of the lost goods.^ 
 
 § 4.39. Belircrjj to an Iinili-i per. It is not usual, and it is not neces- 
 sary that the goods of a guest should be placed in the special custody 
 of the innkeeper. Bringing or placing them infra /iosj)itiian, is suf- 
 ficient to charge him with their safe keeping. We have many illustra- 
 tions of this rule in the reported cases ; as where a sleigh loaded with 
 wheat was put into the umkeeper's wagon-house, where it was usual 
 for him to receive loads of that description ; " or where a gig on a fair 
 day was received and placed in the oi^en street outside of the yard ; ' 
 or where a loaded sleigh is placed in a yard not enclosed, by the direc- 
 tion of the innkeeper's servant ; ^ or where, at the suggestion of a 
 guest, his luggage was taken into the commercial room ; ^ or where a 
 lady's reticule with money in it, was left for a few minutes on a bed, in 
 her room ; ^ in each of these cases the property was stolen, and the inn- 
 keeper was held liable for it. 
 
 The innkeeper lias under the common law a right to prescribe the 
 manner in which the goods or baggage of a guest shall be stored : ° and 
 hence he is liable, where the goods are deposited, placed or secured un- 
 der his direction or that of his servant or agent.^ He is liable for the 
 goods brought into the inn or within the curtilage, m the usual manner, 
 and for all property delivered into his custody ; he is liable as an inn- 
 keeper for the property of a guest, thus brought infra hospitium}" He 
 is not so liable where the guest huuself chooses the place of deposit, 
 and does not request the innkeeper to assume the custody of the prop- 
 
 1 Dickinson v. Winchester, 4 Cusli. 115; Coskery v. Nagle, 83 Ga. 696; Sasseenv. 
 Clark, :)- Ga. 242. 
 
 2 Walbroke v. Griffith, Moor, 877. 
 
 ' Clute V. Wiggins, 14 John. E. IT'i. 
 
 4 Jones T. Tyler, 1 Adol. & Ellis, 522. 
 
 '' Piper T. Mauny, 21 Wend. 282. 
 
 6 Richmond v. Smith, 8 Barn. & Cres. 9. 
 
 ' Kent V. Shuchard, 2 Barn. & Adol. 803. 
 
 8 Wilson V. Halpin, 1 Daly, 496; 30 How. Pr. 124; Van Wyck v. Howard, 12 How. 
 Pr. 14*7. 
 
 ' Shoeoraft v. Bailey, 25 Iowa, 553 ; :.'.:; Cal. 557. See Johnson v. Richardson, 17 HI. 
 302; Pope v. Hall, 14 La. Ann. 324, 524. 
 
 1" Packard v. Northcraft, 2 Mete. (Ky.) 439; Norcross v. N"oreross, 53 Me. 163; Bur- 
 rows V. Triesber, 21 Md. 320. 
 
Op Innkeepeks. 351 
 
 eil y ; ' or where the guest delivers his horse, cattle or sheep to the inn- 
 keeper and directs them to be turned out to pasture. He is not liable 
 ill such cases for a loss by theft; he does not insure the safety of the 
 property.^ 
 
 § 460. The usages of travel, together with the vast variety of goods, 
 parcels and baggage which are customarily carried by travelers, are 
 to be considered in determining what circumstances will charge the 
 innkeeper with the care of property coming to his house. Horses and 
 carriages are properly entrusted to the hostler ; " and parcels to the 
 agent or servant accustomed to receive them ; * while articles of wear- 
 ing apparel may be delivered or deposited, or hung up in the usual 
 place and manner.' If a traveler, as he alights from a car, delivers a 
 check to the servant of an innkeeper for a valise containing money, he 
 is himself bound to use some care to see that it is brought in ; ° and in 
 having it deposited in the proper place ; '' independent of the statute he 
 is not obliged to disclose the contents of a portmanteau, a valise, or a 
 pocket-book ; it is suf&cient to deliver them as valuable parcels, or even 
 like ordinary baggage.^ It is for the innkeeper to ascertain values, and 
 give directions in respect to the place of deposit : ' and it is clearly the 
 duty of the guest to give him, on request, such reliable information in 
 regard to the value of a package or parcel as will enable him to take 
 proper care of it.^" 
 
 § 461. In England and in many of our States the mode of delivering 
 or depositing valuable parcels with the innkeeper is now regulated by 
 
 1 Albin V. Presby, 8 N. H. 408; Wilson v. Halpin, 1 Daly, 496. 
 
 2 Hawley v. Smith, 25 Wend. 642; Neal v. Wilcox, 4 Jones, N. C. Law, 146. 
 ^ Hallenbake v. Fish, 8 Wend. 547; Seymour v. Cook, 55 Barb. 461. 
 
 * Needles v. Howard, 1 E. D. Smith, 54; Cairns v. Bob ins, 8 Mees. and Wels. 258. 
 
 ' Pinkerton v. Woodward, 33 Cal. 557; McDonald v. Edgerton, 5 Barb. 560; Candy 
 V. Spencer, 3 F. & P. 306. See Johnson v. Richardson, 17 111. 302; Profilet v. Hall, 
 14 La. Ann. 524; Reed v. Amidon, 41 Vt. 15. 
 
 6 Fowler v. Dorlon, 24 Barb. 384. 
 
 ' Purvis V. Coleman, 21 N. Y. 111. 
 
 8 In Shoecraft v. Bailey, 25 Iowa, 553, a pocket-book was delivered without stating 
 its contents. In Quinton v. Courtney, 1 Hayw. N. C. Rep. 41, saddle-bags containing 
 money were carried into the bar-room, without notice that they contained money. 
 And in Kellogg v. Sweeny, 1 Lans. R. 397, S. C. 46 IST. T. 291, the plaintiff delivered 
 a satchel containing gold coin to the clerk of the innkeeper, informing him that it 
 contained property of value ; and in each of these, as in other cases, the innkeeper 
 was held liable for the loss of the money, it being stolen. 
 
 ' Richmond v. Smith, 2 M. and R. 235 ; 8 B. and C. 9; Sanders v. Spencer, Dyer, 
 266. 
 
 1" This rule is assumed in construing the statute modifying the common law. Wil- 
 kins V. Earle, 19 Abbott Pr. 190; 3 Robt. 352; 44 N. Y. 172; Behdetson v. French, 
 44 Barb. 31; 46 N. Y. 266. 
 
352 Law op Bailments. 
 
 statute. In this State, money, jewels and ornaments must be entrusted 
 to the proprietor or keeper of the house ; provided he shall furnish a 
 safe to keep them in and post a notice to that effect in a conspicuous 
 manner in the room occupied by the guest. As these statutes bear upon 
 the liability of the hotel or innkeeper, it will be proper to consider them 
 in that comiection.^ 
 
 § 462. MesponsibiliUj of Imikeepers at common law. The keeper of 
 an inn or hotel is liable for the loss of the goods of his guest committed 
 to his care, unless the loss is caused by the act of God, by the common 
 enemy, or by the neglect or default of the guest. On proof of the loss, 
 the innkeeper is prima /acie liable.^ 
 
 The rule is strict, and it is reasonable ; it was established in a period 
 when theft and robbery were quite frequent, and innkeepers were 
 thought to have many opportunities and some temptations to combine 
 and connive with ruffians and outlaws in the plunder of strangers ; and 
 the rule has been continued in more modern times, on grounds of 
 public utility and convenience. The guest, being a stranger, rarely has 
 the means of proving how his property was lost or injured ; ^ and so 
 the law holds the innkeeper responsible for the goods entrusted to him, 
 on the same ground as it holds the common carrier answerable for the 
 goods he receives.* 
 
 There is in Ilolinshed's Chronicles a description of the inns of Eng- 
 land, from which it will be easy to perceive the reason of the law estab- 
 lishing the duties and responsibilities of the innkeeper. The habits and 
 morals of a people are always important to be considered in the study 
 of a law of this kind, confessedly based upon public policy, and designed 
 for the benefit and convenience of the community. The effect of the rule 
 holding the goodman of the house responsible for all losses occurring in 
 his inn, is such that even in a house frequented by robbers, and served 
 by thieves, the chronicler tells us you shall not hear that a man has 
 been robbed in an inn. Though entirely unintentional, this is very 
 
 1 Laws of 1892, Chap. 284; 26 and 27 Vict., Cli. 41; 3 Fisher's Com. Law Digest, 
 46S9. 
 
 2 Hill V. Owen, 5 Blackf. R. 323; Mason v. Thompson, 9 Pick. R. 280; Van Wyck 
 Y. Howard, 12 How. Pr. 147; Cheesbrough v. Taylor, 12 Abbott Pr. 227; Murray v. 
 Clarke, 2 Daly, 102; Dembier v. Day, 12 Neb. 596; Norcross v. Norcross, 53 Me. 163; 
 Burbank V. Chapin, 140 Mass. 123; Russell v. Fagan, 8 East. Rep'r (Del.), 828; Wil- 
 Mns V. Earl, 44 N". T. 172. By the Georgia Code, § 2120, it is provided that in case of 
 loss the presumption is want of proper diligence in the landlord. See Murohison T. 
 Sergent, 69 Ga. 206. And see Cal. Civil Code, § 1859. 
 
 3 Bennett v. Mellor, 5 T.R. 273; 14 John. R. 177; Jones on Bailm. 95, 96; Wilkins 
 V. Earl, 19 Abb. Pr. 190; 3 Robt. 3r,2; 44 N. Y. 172. 
 
 * Orange Co. Bank v. Brown, 9 Wend. R. 85, 114. 
 
Of Innkeepers. 353 
 
 high testimony to the wisdom of the law, showing at once its general 
 utility and the circumstances in which it originated.^ 
 
 1 The description referred to in tlie text is as follows: " Those townes that we call 
 thorowfaires have great and sumptuous innes builded in them, for the receiving of 
 such travellers and strangers as pass to and fro. The manner of harbouring therein is 
 not like that of some other countries, in which the host or goodman of the house doth 
 chalenge a lordlie authoritie over his guests, hut cleane otherwise, sith everie man 
 may use his inne as his owne house in England, and have for his monie how great 
 or little varietle of vittels, and what other service himselfe shall think expedient to 
 call for. Our innes are also very well furnished with naperie, bedding, and tapesterie, 
 especialie with naperie: for beside the linaen used at the tables which is commonlie 
 washed dailie, is such and so much as belongeth unto the estate and calling of the 
 guest. The commeris sure to lie in cleane sheets, wherein no man hath beene lodged 
 since they came from the landresse, or out of the water wherein they were last washed. 
 If the traveller have an horsse, his bed doth cost him nothing, but if he go on foot he 
 is sure to paie a pennie for the same : but whether he be horsseman or footman if his 
 chamber be once appointed he may carrie the kale with him, as of his owne house, so 
 long as he lodgeth there. If he loose oughts whilest he abideth in the inne, the host 
 is bound by a generall custome to restore the damage, so that there is no greater 
 securitie anie where for travellers than in the greatest innes of England. Their 
 horsses in like sort are walked, dressed and looked unto by certeine hostelers or 
 hired servants, appointed at the charges of the goodman of the house, who in hope of 
 extraordinarie reward will deal verie diligentlie after outward appearance in this their 
 function and calling. Herein neverthelesse are manie of them blameworthie, in that 
 they do not onlie deceive the beast oftentimes of his allowance by sundrie meanes, 
 except their owners looke well to them ; but also make such packs with slipper mer- 
 chants which hunt after preie (for what place is sure from evil and wicked persons) 
 that manie an honest man is spoiled of his goods as he travelleth to and fro, in which 
 feat also the coimsell of the tapsters or drawers of drinke, and chamberleins is not 
 seldome behind or wanting. Certes I beleeve not that chapman or traveller in Eng- 
 land is robbed by the waie without the knowledge of some of them, for when he cometh 
 into the inne, and alighteth from his horsse, the hostler forthwith is verie busie to 
 take downe his budget or capcase in the yard from his sadle bow, which he peiseth in 
 his hand to feel the weight thereof: or if he misse of this pitch, when the guest hath 
 taken up his chamber, the chamberleine that looketh to the making of the beds, will be 
 sure to remove it from the place where the owner hath set it as if it were to set it more 
 convenientlie some where else, whereby he getteth an inkling whether it be monie or 
 other short wares, and thereof giveth warning to such od ghests as hantthe house and 
 are of his confederacie, to the utter undoing of manie an honest yeoman as he journi- 
 eth by the waie. The tapster in like sort for his part doth marke his behaviour, and 
 what plentie of monie he draweth when he paieth the shot, to the like end : so that it 
 shall be an hard matter to escape all their subtile practices. Some thinke it a gay 
 matter to commit their budgets at their comming to the goodman of the house : but 
 thereby they oft bewraie themselves. For albeit their monie be safe for the time that 
 it is in his hands (for you shall not hear that a man is robbed in his inne) yet after 
 their departure the host can make no warrantise of the same, sith his protection 
 extendeth no further than the gate of his owne house : ,and there cannot be a surer 
 token unto such as prie and watch for tho';e booties, than to see anie ghest deliver 
 his capcase in such manner. In all our innes we have plenty of ale, beere, and sundrie 
 
 23 
 
354 Law op Bailments. 
 
 § 4G3. From an early day and by the general custom, innkeepers are 
 obliged to keep the goods and chattels of their guests without subtrac- 
 tion or loss day and night, so that no damage shall come to them from 
 the negUgence of the innkeeper or his servants. The obligation is very 
 broad ; they are bound to keep the goods in safety, and are liable for 
 losses by either negligence or theft.^ The form of the action against an 
 innkeeper, and the averments in the plaintiff's complaint assume that 
 his liability is grounded on his negligence or breach of duty ; ^ and as 
 a deduction from this postulate, we have some ad'uliL-acions holdini^ 
 that he is not liable where the loss does not arise through his negli- 
 gence ; '" nor for money retained by the guest in his own keeping, exceed- 
 ing the amount necessary for traveling expenses : ' and some rulings 
 
 kinds of wine, and such is tlie capacitie of some of them, that they are able to lodge 
 two hmidred or three hundred persons, and their horsses at ease, and thereto with a 
 verie short warning make such provission for their diet, as to him that is unacquainted 
 withall may seeme to be incredible. Howbeit of all in England there are no worse 
 innes than in London, and yet manie are there far better than the best that I have 
 heard of in anie foren countrie, if all circumstances be dulie considered. But to leave 
 this and go in hand with my purpose. I will here set downe a table of the best 
 thorowfaires and townes of greatest travel! of England, in some of which there are 
 twelve or thirteene such innes at the least, as I before did speake of. And it is a world 
 to see how ech owner of them contendeth with other for goodnesse of intertainmeut 
 of their guests, as about finesse and change of linnen, furnitiu'S of bedding, beautie 
 of rooms, service at the table, costlinesse of plate, strength of drinke, varietie of 
 wines, or well (being) of horsses. Finallie there is not so much omitted among them 
 as the gorgeousnes of their verie signes at their doores, wherein some do consume 
 thirtie or fortie pounds, a meere vanitie in mine opinion, but so vaine will they needs 
 be, and that not onlie to give some outward token of the inne keepers welth, but also 
 to procure good ghests to the frequenting of their houses in hope there to be well 
 used." 
 
 Here follows a table of " waies or thorowfaires" with distance. These chronicles 
 come down to the reign of Elizabeth, and this description of the inns of England 
 given in the very words of the quaint old writer, is to be imderstood as applying to 
 about that period. "Of our Innes and Thorowfaires," 2 Holingshed's Chronicle, 
 Cb. 16, page 24i;. See Macaulay's History of England, Yol. I. pages .357, 358; and 
 Wilkins v. Earle, 4 Am. Law Eeg. N. S. 472; 3 Robt, 352; 19 Abbott Pr. 190; 44 N. Y. 
 172. 
 
 1 Dawson v. Chawney, 5 Adolph. & Ellis, X. E. 164; Clute v. Wiggins, 14 John. E. 
 175; ante, §§ 459, 460; Shaw v. Berry, 31 Maine, 478; Eubenstoin v. Cruikshank, 54 
 Mich. 199. 
 
 2 Jloak's Van Santvoord's PI. 218, 219; Chitty PI. 307. 
 
 SMerritt v. Claghorn, 23 ^^t. 177; McDaniels v. Eobinson, 26 Vt. 316; Metcalf 
 V. Hess, 14 111. 129; Kisten v. Hildebrand, 9 B. Mon. 72; Laird v. Eichold, 10 Ind. 212. 
 
 * Simon v. Miller, 7 La. Ann. E. 360; Johnson v. Richardson, 17 111. 302; Maltby 
 V. Chapman, 25 Md. 269, 307; Wilkins v. Earle, 3 Eobt. E. 352, overruled by Court of 
 Appeals, 44 N. T. 172. That the liability of the innkeeper is not limited to the sum 
 needed for traveling expenses, see Smith v. Wilson, 36 Minn. 334. 
 
Of Innkbepees. 355 
 
 exempting the innkeeper from liability for losses arising from burglary, 
 or from flre, without any negligence on his part.^ But the current of 
 authorities under the common law is somewhat more strict : it holds 
 the innkeeper liable for losses by thefts, whether committed by his serv- 
 ants, the domestics within the house, or by parties from without ; ^ it 
 holds him liable for losses by robbery and violence, and for those which 
 are unexplained ; also for those which are attributable to other guests.^ 
 The innkeeper is bound to use extraordinary diligence in preserving 
 and returning the goods of his guest ; he is liable under the same strict 
 rule as a common carrier ; he insures the safety of the property entrusted 
 to him, and is liable for it under the common law, unless it is proved that 
 the loss of it is attributable to the negligence or fraud of the guest, or 
 to the act of God or the public enemy. This appears to be the prevail- 
 ing rule of the common law, where it is not modified by statute.* A 
 sense of the severity of this rule appears in many of our decisions, and 
 has resulted in various modifications by the statute law.' 
 
 1 McDaniels v. Robinson, supra; Merritt v. Claghorn, supra; Cutler v. Bonney, 30 
 Mich. 259. 
 
 ^Filipowski v. Merri weather, 2 F. & F. 285; Shoecraft v. Bailey, 25 Iowa, 553; 
 Houser v. Tally, 62 Pa. St. 92. 
 
 8 Gile V. Libby, 36 Barb. 70; 33 N. Y. 574; Hallenbake v. Fish, 8 Wend. 547; Mason 
 V. Thompson, 9 Pick. 280; Pinkerton v. Woodward, 33 Cal. 557. The defense in this 
 case was that the defendant's clerk was feloniously knocked down, and the key of the 
 safe taken from him by violence, and the safe (containing plaintiff's property, gold 
 dust) opened and robbed by certain evil disposed persons, who carried away plaintiff's 
 purse or package — and it was held no defense. See Woodworth v. Morse, 18 La. Ann. 
 156. In Woodward v. Birch, 4 Bush (Ky.), 510, there was proof on the part of the 
 defendant tending to show a robbery of the safe during the night, with proof on the 
 part of the plaintiff that a discharged clerk of the defendant had in his possession a 
 key to the lock of the safe; and it was held that the defendant was liable, notwith- 
 standing he told the guest when he received his money, that his safe had recently 
 been robbed, and that he would not be responsible for the money deposited in it. See 
 Weisenger v. Taylor, 1 Bush (Ky.) 275. In McDaniels v. Eobinson, (26 Vt. 316), the 
 court conceded that a loss by robbery, by a felonious entry of the defendant's house 
 in the night, might excuse him where it assumed the form of superior force; and yet 
 held it incumbent on him to establish the loss in that manner by satisfactory evidence. 
 
 * Hulett V. Swift, 42 Barb. 230; S. C. 33 N. T. 571; Shaw v. Berry, 31 Maine, 478; 
 Sibley v. Aldrich, 33 N. H. 533; Mason v. Thompson, 9 Pick. 280; Sasseen v. Clark, 
 37 6a. 242; Metcalf v. Hess, 14 111. 129; Johnson v. Richardson, 17 111. 302; Burrows 
 V. Trieber, 21 Md. 320; Coskery v. Nagle, 83 Ga. 702; Norcross v. Norcross, 53 Me. 
 163; Dumbier v. Day, 12 JSTeb. 596; Burbank v. Chapin, 140 Mass. 123. As to act of 
 public enemy, see ante, § 157. 
 
 6 Ingallsbee v. Wood, 33 N. T. 577. See 14 Albany Law Journal, 128. 
 
 In Hulett V. Swift, supra, the plaintiff's horse, harness and wagon, containing goods 
 of considerable value, were destroyed by fire in the night, while the same were in the 
 defendant's custody as an innkeeper; the origin of the fire was not shown; and 
 
356 Law of Bailments. 
 
 § 464. The law does not hold any bailee liable for losses caused by 
 the public enemy ; or for losses caused by the act of God, that is, by 
 irresistible force, or by inevitable accident, under the action of natural 
 forces. And hence, briefly, the innkeeper is not answerable for losses 
 occasioned by superior force ; not answerable, unless he has made an 
 express contract assuming a liability not imposed upon him by law.^ 
 
 § 465. A guest cannot recover against an innkeeper for the loss of 
 his goods, where his own negligence contributed to the loss. Slight 
 omissions of care will not prevent his recovery. An omission to lock 
 his door on retiring to rest, is not necessarily such negligence as will 
 defeat his action ; ^ and yet an omission of this kind, where the guest 
 has also failed to deposit his money or his baggage in the place appointed, 
 may be properly considered on the question of negligence ; ' as it may, 
 where a considerable sum of money is left m a trunk m his room, and 
 the room is left unlocked, in disregard of the innkeeper's request. As a 
 rule, the guest cannot recover where the loss happens through his fail- 
 plaintiff recovered the value of the property. The decision was soon after followed 
 by an act of legislation. Chapter GoS, Laws of X. T. of ISGO. 
 
 § 1. jSTo innkeeper shall be liable for the loss or destruction by fire of property 
 received by him from a guest, stored or being with the knowledge of sucli guest in a 
 barn or other out-building, where it shall appear that such loss or destruction was the 
 work of an incendiary, and occurred without the fault or negligence of such inn- 
 keeper. 
 
 § 2. Xo animal belonging to a guest and destroyed by fire while on the premises of 
 any innkeeper, shall be deemed of greater value than $300, unless an agreement shall 
 be proved between such guest and innkeeper that a higher estimate shall be made of 
 the same. 
 
 Under this statute the burden is upon the innkeeper to show that the Are was an 
 incendiary one, and to show absence of negligence on his part. Faucett v. Nichols, 
 64 N. Y. 377. 
 
 See Cutler v. Bonney, 30 Mich. 2.59, holding that the innkeeper is not liable for 
 losses by fire not caused by his negligence. In Ingallsbee v. Wood, supra, the plaint- 
 iff's horse and wagon left at an inn, were burned up during the night; and no recovery 
 was allowed, on the ground that neither the plaintiff nor his agent was a guest in the 
 house, disapproving Mason v. Thompson, 9 Pick. 2si). 
 
 1 Harmony v. Bingham, 12 N. Y. 99, 107; how far the act of God will excuse the 
 performance of a contract, depends vipon circumstances. In some cases, it simply 
 varies the mode of the performance, without otherwise affecting the obligation of the 
 contractor: Williams v. Vanderbilt, 28 N. Y. 217. The refusal or willful action of a 
 third party docs not excuse performance: Blacksmith v. Fellows, 7 N. T. 401, 415; 
 S. C. 19 How. U. S. 306; 42 N. Y. 126. 
 
 2 Morgan v. Ravey, 6 H. & N. 205 ; Filipowski v. Merri weather, 2 F. & F. 285 ; Classon 
 V. Leopold, 2 Sweeny, 705. See Spring v. Hager, 145 Mass. 186; Murchison v. Sar- 
 gent, 69 Ga. 200; Gile v. Libby, 36 Barb. 70; Batterson v. Vogel, 10 Mo. App. 235. 
 
 3 Wilson V. Halpin, 1 Daly, 496; Buddenburg v. Bonner, 1 Hilton, 84; Oppenheim 
 V. White Lion Hotel, L. E. 6 C. P. 515; Bohler v. Owens, 60 Ga. 185. 
 
Of Innkeepers. 357 
 
 Tire to exercise ordinary or reasonable care on his part ; or where, to ex- 
 press the same thing in other words, his want of ordinary care contrib- 
 utes to the loss.^ There is nothing arbitrary in the rule. The guest 
 is not allowed to recover damages resulting in part from his own negli- 
 gence ; or for a loss that would not have occurred, had he used the ordi- 
 nary care which a prudent man may be reasonably expected to take, 
 under the circumstances.'' 
 
 § 466. A reckless or foolish exposure of his money by the guest, 
 increases the danger of loss by theft ; ° and may become, in connection 
 with other negligent omissions, contributory negligence, when the 
 money is soon after lost by theft.* So a guest may be guilty of contribu- 
 tory negligence, where he allows another person to exercise acts of 
 OATOcrship over his baggage, and leaves the landlord ignorant of his 
 title ; thus helping the fraudulent party to appropriate and carry off 
 his property.^ 
 
 It is not easy to give a definition of contributory negligence, broad 
 enough to cover all cases likely to arise, and yet sufficiently specific to 
 be of service. The guest cannot recover of the innkeeper, where he 
 misleads him as to the value and contents of a package, and so throws 
 him off his guard. ^ There need not be an intention to mislead.' His 
 imprudent conduct conducing to the loss, or exposing his goods to peril, 
 will defeat his recovery.^ 
 
 A guest can have no cause of action, where he does not confide his 
 goods to the keeping of the innkeeper;^ and on the other hand, his 
 failure to make a formal delivery of them, will not exonerate the inn- 
 keeper from responsibility for goods brought into his house or upon his 
 premises in the usual, or in a reasonable manner.^" His duty to receive 
 
 1 Fowler v. Dorlon, 24 Barb. 384; Armistead v. White, 6 Law & Eq. Eep. .349; 
 Chamberlain v. Masterson, 26 Ala. 371; Hadley v. Upshaw, 27 Texas, 547; Profilet v. 
 Hall, 11 La. Ami. 324; Pervis v. Coleman, 21 N. T. Ill; Elcox v. Hill, 98 U. S. 218. 
 
 2 Cashill V. Wright, 6 Ellis & Black. 891 ; as to ground of the rule, see Brown v. 
 Maxwell, 6 Hill, 592. ' Armistead v. White, supra. 
 
 * Burrows v. Treiber, 21 Md. 320. " Kelsey v. Berry, 42 111. 469. 
 
 8 Without being directly adjudged, the proposition of the text is strongly sustained 
 by analogy. Bendetson v. French, 46 N. T. 266. A carrier receiving a trunk for 
 transportation, has a right to assume and act upon the assumption that it contains 
 only ordinary baggage: Richards v. Westcott, 2 Bosw. 589; 7 Bosw. 6. 
 
 ' Following out the analogy, see Pardee v. Drew, 25 Wend. 462 ; The Great Northern 
 K. Co. V. Shepherd, 14 Eng. Law & Eq. 367. 
 
 8 Fowler v. Dorlon, 24 Barb. 384; Fviller v. Coats, 18 Ohio St. 343; Houser v. Tully, 
 62 Pa. St. 92. 
 
 ' Sneider v. Geiss, 1 Teates, 34; Houser v. Tully, supra. 
 
 1° Treiber v. Burrows, 27 Md. 130; Epps v. Hinds, 27 Miss. 657; Sasseen v. Clark, 
 37 Geo. 242. 
 
358 Law of Bailments. 
 
 guests, with their higgage and goods, and provide for them, is affirma- 
 tive ; and hence an expression of preference by a guest for a given room 
 as a place of deposit for his goods or baggage, or his knowledge of the 
 situation or bad construction of the stables or stalls where his horses 
 are placed, does not imply an agreement for their use, or render him 
 chargeable for contributory negligence, in their use.^ The innkeeper is 
 answerable for the fitness and sufficiency of his accommodations, for the 
 custody and for the handling of the property, until it is redelivered to 
 the guest on his departure.'^ 
 
 § 467. Statutory modifications of the common law, affecting the 
 liability of innkeepers, are to be found in England and i]i several of our 
 States, designed for the protection of the innkeepers as well as the public. 
 It is noticeable that these statutes do not introduce any new principlos, 
 unknown to the common law; and that they give the means of security 
 to the guest as well as the innkeeper. 
 
 Under the English statute an innkeeper is not liable to make good 
 any loss or injury to the goods or property of a guest, not being a horse 
 or other live animal or any gear appertaining thereto or any carriage, 
 to a greater amount than 30?., except. 1, where such goods or property 
 shall have been stolen, lost or injured through the willful act, default, 
 or neglect of the innkeeper or any servant in his employ ; 2, where such 
 goods or property shall have been deposited expressly for safe custody 
 with the innkeeper ; with a proviso, that in case of such deposit it shall 
 be lawful for the innkeeper, if he think fit, to require as a condition of 
 his liability, that the goods or property shall be deposited in a box or 
 other receptacle, fastened and sealed by the person depositing the same. 
 Any defaults of the innkeeper preventing, or his refusal to accept a 
 deposit of the goods or property of his guest, deprives the innkeeper of 
 any benefit secured to him by the statute ; so does his omission to post 
 or exhibit a printed copy of the first section of the act in conspicuous 
 parts of the hall or entrance to the house. The word imi includes any 
 hotel, inn, tavern or public hoase.^ 
 
 The New York statute on the subject is cast in a different mold ; it is 
 different in form, and does not apparently so much limit the innkeeper's 
 liability. It relieves the proprietor of a hotel from liability for any loss 
 
 1 Packard v. Nortlicroft, 2 Mete. (Ky.) 439; Dickerson v. Rodgers, 4 Humpli. (Term.) 
 179; Metcalf V. Hess, 14 111. 12!); Sibley v. Aldricli, .33 X. H. 553; Seymour v. Cook, 
 53 Barb. 451; Jordan v. Boone, 5 Rich. S. C. 528; Wasliburn v. Jones, 14 Barb. 103; 
 Hill V. Owen, 5 Blackf. 323; Dawson v. C'hamney, 5 Q. B. 164; 13 L. J. Q. B. 33; 
 Day V. Bather, 2 H. & C. 14. 
 
 2 26 and 27 Vict, c. 41. See copy otthe statute, 3 Fisher's Digest, 4689; 2 Broom 
 and Hadley's Com. 192; Spice v. Bacon, 16 Albany Law Journal, 385. 
 
Of Iknkeepeks. 359 
 
 of money, jewels or ornaments, on certain terms ; viz. when he provides 
 a safe in the office or in some convenient place for the safe-keeping of 
 such articles, and notifies his guest thereof, by posting a notice to that 
 effect in a conspicuous place and manner in the office and public room 
 and in the public parlors of the hotel, and the guest neglects to deposit 
 his money, jewels or ornaments in the safe so provided. The notice is 
 in effect a request or invitation that these articles, specially named, be 
 deposited in the safe.^ 
 
 § 468. The exemption under the statute of this State is limited to 
 the particular species of property named, and being in derogation of the 
 common law, it cannot be extended in its operation and effect by doubt- 
 ful imphcation, so as to include property not fairly within the terms of 
 the act ; such as a watch and chain worn by a guest in the usual man- 
 ner.^ The statute is to be enforced according to its terms ; it covers 
 jewelry, in separate pieces, or done up in packages ; * and ornaments, 
 not including ornamental things of use, like a gold pen and pencil case.^ 
 The manifest intent of the statute is to enable the innkeeper to protect 
 himself against losses of small and valuable parcels, that are capable of 
 being deposited in a safe and are not actually worn as a part of one's 
 apparel. 
 
 On arriving at a hotel the guest must, for his own protection, deposit 
 
 1 See Laws of 1855, Chap. 421; Laws of 1871, Chap. 802; Laws of 1867, Chap. 677; 
 Laws of 1883, Chap. 227; Laws of 1892, Chap. 284. These several enactments show 
 the various stages hy which the rigid rule of the common law has been modified in this 
 State. It is now provided by statute as follows : " Whenever the proprietor or pro- 
 prietors of any hotel or inn shall provide a safe in the office of such hotel, or other 
 convenient place, for the safe-keeping of any money, jewels or ornaments belonging 
 to the guests of such hotel or inn, and shall notify the guest thereof by posting a 
 notice (stating the fact that such safe is provided, in which such money, jewels, or 
 ornaments may be deposited) m a public and conspicuous place and manner in the 
 office and public room, and in the public parlors of such hotel ; and, if such guest shall 
 neglect to deliver such money, jewels or ornaments to the person in charge of such 
 office for deposit in such safe the proprietor or proprietors of such hotel shall not be 
 liable for any loss of such money, jewels or ornaments sustained by such guQst by 
 theft or otherwise, but no hotel proprietor or lessee shall be obliged to receive prop- 
 erty on deposit for safe-lceeping exceeding five hundred dollars in value; and if 
 such guest shall deliver such money, jewels or ornaments to the person in charge of 
 such office, for deposit in such safe, said proprietor or proprietors, shall not be liable 
 for any loss thereof, sustained by such guest, by theft or otherwise, in any sum ex- 
 ceeding the sum of two hundred and fifty dollars, tmless by special agreement in 
 writing by proprietor or manager." Laws of 1892, Chap. 284. Many of the decisions 
 under the earlier statutes are now obsolete. ~ 
 
 2 Eamaley v. Leland, 4S N. T. 539; modifying S. C. 6 Robt. 358. 
 8 Bendetson v. French, 46 N. T. 266; S. C. below, 44 Barb. 31. 
 
 * Gile V. Libby, 36 Barb. 70; 43 N. T. 539. 
 
360 Law of Bailments. 
 
 the specilied. articles ; he must comply with the terms of the statute.^ 
 And in offering a package for deposit, he should state its contents. On 
 his departure, the articles are to be surrendered to the guest, so that he 
 may repack them ; and the liability of the innkeeper attaches until the 
 property is duly delivered, when the guest leaves the house.^ 
 
 The innkeeper's refusal to accept a deposit, duly tendered, if within 
 the statutory limit, will deprive him of the protection of the statute ; 
 and personal notice to the guest, without posting it as required by the 
 statute, will give the proprietor of the house tlie protection of the law.^ 
 
 § 469. It was formerly considered a debatable question, whether 
 common carriers and innkeepers may contract for a more restricted lia- 
 bility than the law imposes upon them in the absence of a special agree- 
 ment ; but the question has been long settled in their favor. It is 
 agreed that they may make reasonable rules regulating the manner in 
 which they will accept and keep or carry goods ; such as requiring that 
 the contents of packages delivered to a carrier shall be made known, 
 and that goods delivered to an innkeeper shall be deposited in a par- 
 ticular room.^ This is no more than saying that the guest may take 
 upon himself the care and custody of his goods, so as to relieve the inn- 
 keeper of his responsibility ; and that the person who delivers property 
 to a carrier is bound to deal fairly and state frankly the contents of 
 packages to be carried."^ 
 
 § 470. The responsibility of the innkeeper begins from the moment 
 he receives a guest with his goods, and it ends when the relation be- 
 tween him and the guest is dissolved. The privileges and responsi- 
 bilities of the innkeeper are reciprocal and dependent upon each other, 
 as a duty upon a right." For his liabiUty he has a lien on the goods 
 intrusted to him. And where the law does not give him a lien on goods 
 or property coming into his custody, it does not hold him liable as an 
 innkeeper.' 
 
 § 471. Innheeper'' s duty to receive Guests. The keeper of a common 
 
 1 Rosenplaenter v. Roessle, 54 N. Y. 202. 
 
 - Bendetson v. French, 44 Barb. 31; 8. C. 40 N. T. 200. 
 
 3 Purvis V. Coleman, 21 N". T. 111. The substitution of personal or actual notice in 
 place of the posted notice required by the statute has been held ineffectual in other 
 States. Lanier v. Youngblood, 73 Ala. 587; Batterson v. Vogel, S Mo. App. 24. 
 
 * Orange Co. Bank v. Brown, Wend. 85, 114; Richmond v. Smith, 8 Barn. A 
 Cress. 9; 4 Burr. 23U1. 
 
 5 Stanton v. Leland, 4 E. D. Smith, 88. The rules must be reasoeable; Johnson v. 
 Richardson, 17 111. 302; 14 La. Ann. 324, 524; 7 Hill, 47; Nevins v. The Bay State S. 
 Co., 4 Bosw. 225, 238. 
 
 6 BKONSOif, J., in Grinnell v. Cook, 3 Hill, 485, 490, 491. 
 
 ' Fox V. McGregor, 11 Barb. 41 ; Peet v. McGraw, 25 Wend. 653; Mowers v. Fethers, 
 61 N. T. 34. 
 
Of Innkeepers. 361 
 
 inn is not at liberty to refuse to receive a guest, for wlioni he lias room, 
 either in the day time or at night ; neither can he discharge himself 
 from his legal responsibility by a refusal to take care of his goods on 
 the ground that there are suspected persons in the house for whose con- 
 duct he is not wUling to be answerable.^ If, having room for him, he 
 refuses to receive a guest, without a reasonable ground for his refusal, 
 or on a false pretence that his house is full, he will be liable to an action, 
 both civilly and criminally.^ An indictment lies against an innkeeper, 
 who, having room in his house at the time, refuses to receive a trav- 
 eler ; and it is not necessary for the traveler to tender the price of his 
 entertainment if his rejection is not placed on that ground. And it is 
 no defense for the innkeeper that the guest was traveling on a Sunday, 
 or at an hour of the night after the landlord had gone to bed ; nor is it 
 any defense that the guest refused to tell his name and abode, since the 
 innkeeper has no right to insist upon knowing these particulars ; but 
 if the guest come in drunk, or behaves in an indecent or improper man- 
 ner, the innkeeper is not bound to receive him.^ 
 
 The innkeeper does not undertake absolutely to receive as guests all 
 persons who come to his house, but only those who are capable of pay- 
 ing a compensation suitable to the accommodations provided.* He has 
 a right to demand prepayment ; * but if he hangs out a sign and opens 
 his house for travelers, it is an implied engagement to entertain, on the 
 same terms, all persons who travel that way ; and upon this universal 
 assumpsit an action on the case will lie against him for damages, if he 
 without good reason refuses to admit a traveler." The putting up of a 
 sign is only a matter of evidence, and by no means necessary to prove 
 that a house or hotel is really a common inn.' 
 
 § 472. In a private action against an innkeeper ior refusing a trav- 
 eler lodgings for the night, it is proper to allege a tender of compensa- 
 tion, so as to take from the landlord every excuse for not receiving him. 
 
 1 Jones on Bailm. 94. 
 
 2 Dyer, 158 b 1; Eex v. Ivens, 1 Carr. and Payne K. 213. State v. Steele, 106 N. C. 
 766. It is provided by statute in this State that no person shall be denied the full and 
 equal 'enjoyment of the accommodations, advantages, facilities, and privileges of all 
 hotels, inns, taverns, restaurants, public conveyances on land or water, theaters and 
 other places of public resort or amusement, because of race, creed, or color; and that 
 any one denying any person such full enjoyment for the reasons specified is guilty of 
 a misdemeanor. Laws of 1881, Chap. 400. 
 
 = 7 Carr. and Payne K. 213; Commonwealth v. Naylor, 34 Penn. St. 86; S. C. 2 Pars. 
 Pa. Sel. Cas. 431; Markham v. Brown, 8 N. H. 523. 
 * Thompson v. Lacy, 3 Bam. & Aid. R. 285. 
 s 9 Eep. 87. 
 6 3 Black Com. 166. 
 ^ 5 Sand. R. 242; 3 Hill, E. 150; Ilowt v. Franklin, 20 Texas, 79R. 
 
S62 Law of Bailments. 
 
 It should also be made to appear, that the plaintiff's application was 
 not broader than his legal right ; e. g., that he appUed for reasonable 
 accommodations ; since he has no right to select and demand a particu- 
 lar apartment.* 
 
 To sustain an indictment for not receiving a guest, there must also 
 be a tender of compensation, unless the refusal is placed upon some 
 other ground." In one of the old books the rule is laid down in these 
 words: "If one who keeps a common mn refuse either to receive a 
 traveler as a guest into his house or to find him victuals or lodging, 
 upon his tendering him a reasonable price for the same, he is not only- 
 liable to render damages to the party aggrieved in an action on the 
 case, but may also be indicted and fined at the suit of the king ; and it 
 is no way material whether he have a sign before his door or not, if he 
 make it his business to entertain passengers." ^ The innkeeper is also 
 liable to an indictment at common law as being guilty of a public 
 nuisance, where he usually harbors thieves or persons of a scandalous 
 reputation, or suffers frequent disorders in his house, or takes exorbi- 
 tant prices.* 
 
 The innkeeper, as a general rule, has no right to exclude persons from 
 entering the inn, and going into the common public rooms, on a lawful 
 business. His house is a public resort.^ And yet it is his right, as it is 
 his duty, to preserve quiet and order in the house ; hi the approaches to 
 it, in its passages and apartments.'' He has the right also to defend his 
 business against the agents of a rival inn, that seek to decoy away his 
 customers. 
 
 When a person applies for entertainment at an inn, and the mnkeeper 
 refuses to receive him because his house is already full, and the 
 traveler nevertheless insists upon entering, saying that he will shift 
 among the rest of the guests, and accordingly places his baggage in 
 the chamber without the keeper's consent, where he is robbed, he does 
 not in fact become a guest ; ' and he does not become entitled to pro- 
 tection as a guest, where the host requires as a condition of his liability 
 
 1 Fell V. KnigM, 8 Mees. and Welsb. R. 269. The right to lodge and be fed, does 
 not give a party the right to insist upon carrying on a business in a private or public 
 house. Ambler v. Skinner, 7 Robt. 561; 61 N. Y. 34. 
 
 2 Rex V. Ivens, 7 Carr. and Payne, 213. 
 ' 2 Hawkins' Pleas of the Crown, 267. 
 
 * Idem; Baldwin v. State, 6 Ohio, l.^; State v. Matthews, 2 Dev. and B. (N. C.) L. 
 424; South v. Grant, 7 N. J. L. (2 Hals.) 20. 
 
 6 Markham v. Brown, S N. H. 523 ; Linkous v. Commonwealth, S Leigh R. 608. See 
 State V. Steele, 106 N. C. 760. 
 
 8 Wendell v. Baxter, 12 Gray, 496- Jencks v. Coleman, 2 Sumner, 221. 
 
 ' Dyer, 158. 
 
Of Innkebpees. 363 
 
 that the goods be placed in a particular room, under lock and key, and 
 he refuses and retains them in his own custody.^ He cannot . coerce 
 the innkeeper beyond the limits of reason and fair dealing. 
 
 § 473. Innkeeper's Lien. The law gives to the innkeeper a lien on 
 the goods entrusted to him by his guest, for his reasonable charges. 
 Holding him bound to receive and entertain travelers, and liable for 
 their goods under a strict rule of responsibility, the law gives him the 
 means of securing a fair compensation for the entertainment which he 
 supplies.^ He has a lien where he is liable as an innkeeper; and he is 
 so liable only for goods entrusted to him by a guest. Accordingly he 
 has no lien for the keeping of horses received by him from one of his 
 neighbors, or from a person who does not become his guest.' The rela- 
 tion of innkeeper and guest is the foundation of the lien.* The relation 
 must exist ; but it is not necessary that the owner of the goods should 
 continue actually infra hospitiumJ' The lien once created, will subsist 
 as long as the relation continues, actually or constructively.® It rests 
 upon the goods of the guest ; it does not justify a detention of the 
 guest himself for any reckoning due, or the taking of any clothes or 
 wearing apparel from oiT his person, as security for the same.' 
 
 § 474. The relation of innkeeper and guest being established, the lien 
 covers the goods, baggage, and property of the guest, and all such 
 things as the guest brings with him ; it extends to whatever the guest 
 brings and the innkeeper receives ; it is not limited to property of the 
 guest,* or to things of material or intrinsic value.* It covers such goods 
 as a traveler ordinarily or naturally carries with him, and even peculiar 
 things, where the innkeeper receives them without notice that they are 
 the property of a third person ; it does not cover a chattel subsequently 
 
 1 Bacon's Abr. Inns and Innkeepers, e. 4. 
 
 2 Grinnell v. Cook, 3 Hill R. 488; Peet v. McGraw, 25 Wend. 653; Fox v. McGregor, 
 11 Barb. 41. 
 
 8 Grinnell v. Cook, supra; Ingallsbee v. "Wood, .36 Barb. 452; S. C. 36 N". T. 577. 
 
 * Binns v. Pigot, 9 C. and P. 208; Smith v. Dearlove, 6 Com. B. 132. 
 
 5 McDonald v. Edgerton, 5 Barb. 560. 
 
 « Allen T. Smith, 12 Com. Bench N". S. 638; 9 Jur. N. S. 230, 1284; 11 W. E. 440. 
 
 ''Sunbolf V. Alford, 3 M. and W. 248; as to who are to be considered guests, see 
 ante, §§ 455-458. The lien extends to property exempt from execution and will attach 
 to a coat brought into the inn by a guest. Swan v. Bournes, 47 Iowa, 501. 
 
 8 Threlfall v. Borwick, 2 English (Moak) E. 689; Jones v. Morrill, 42 Barb. 623; 31 
 How. Pr. 639; Manning v. Hollenbeck, 27 Wis. 202; Snead v. Watkins, 1 Com. B. IST. 
 S. 267; 37 Eng. Law and Eq. 384; Marcuse v. Hogan, Montreal L. Eep. 6 Supr. Ct. 
 184. This is undoubtedly the rule as to goods of third persons brought into the inn 
 by a guest if the innkeeper had no notice of the true ownership. Cook v. Kane, 13 
 Oregon, 482; Covington v. Newberger, 99 N. C. 523; Mcllvane v. Hilton, 7 Hun, 594. 
 
 s Snead v. Watkins, supra, relating to a Letter Book belonging to the plaintiff. 
 
364 Law of Bailments. 
 
 hired by tlie guest and brought into the inn ; ^ and it is not defeated by- 
 showing that the guest wrongfully took the property from a third per- 
 son.^ The reason given is this : the innkeeper is bound to receive the 
 guest, and cannot stop to investigate his title to the property he brings 
 ■with him ; ^ and, it may be added, he is also liable for the safe keeping 
 of the goods, though they be the property of a third person.^ 
 
 The contract is one and indivisible. The compensation paid by the 
 guest for his accommodations, covers the custody of his goods.* And 
 hence the innkeeper has a lien on the goods of his guest, for board, lodg- 
 ing, and wine supplied on his order. ^ The guest not being an infant, 
 the lien covers the fair value of the articles supplied to him, and is not 
 limited to a charge for a reasonable room with board and lodgings, or a 
 reasonable quantity of wine. The guest being an infant, the lien covers 
 the innkeeper's reasonable charges, and nothing more.^ 
 
 §475. The rule giving the innkeeper a lien on the goods brought to 
 his inn, and not owned by the guest, was adopted with some hesitation ; 
 and some of the decisions would seem to countenance the theory that 
 the innkeeper's lien on livuig chattels thus brought to his house, is to 
 be regarded as specific — namely, as a lien for their keep.' But the 
 current of authority allows him to detain any parcel of the goods 
 belonging to the guest, or brought with him, as security for his entire 
 bill.= 
 
 The innkeeper waives or loses his lien, by suffering his guest to take 
 _away his goods, when he ftnally leaves the house, and the lien will not 
 revive on his return with the goods to the inn.^ A tender of the 
 amount due, extinguishes the lien." 
 
 § 476. The innkeeper's lien upon the goods of his guest does not, 
 under the common law, clothe him with the right to sell them for the 
 satisfaction of his charges ; his remedy to enforce the lien is by an 
 
 ' Bacon's Abr. Inns and Innkeepers, tit. D; Broadwood v. Granara, 10 Exch. 417; 
 1 Jur. N. S. 19; Fox v. McGregor, 11 Barb. 41, 43. See Threlfall v. Berwick, supra. 
 
 2 Johnson v. Hill, .3 Stark, 172; Jones v. Morrill, 42 Barb. 62.3. 
 
 8 Needles v. Howard, 1 E. D. Smith, 54; 1 Lans. 397; 3 Hill, 4S.J, 490. 
 
 * Lane v. Sir Robert Cotton, 12 Mod. R. 480. 
 
 6 Proctor V. Nicholson, 7 C. and P. 67. 
 
 6 Watson V. Cross, 2 Duvall (Ky.), 147. 
 
 ' Johnson v. Hill, 3 Stark. 172; Turrill v. Crawley, 13 Q. B. (13 Adol. & Ellis, N. S.), 
 197. See Gump v. Showalter, 43 Penn. St. 507. 
 
 8 Young V. Kimball, 23 Penn. St. 193; Jones v. Morrill, 42 Barb. 623. Where sev- 
 eral travel and put up together at an inn, the goods of one cannot be detained for the 
 board of all. Clayton v. Butterfield, 10 Rich. (S. C.) 300; Hursh v. Byers, 29 Mo. 469. 
 
 » Jones V. Thurloe, 8 Mod. E. 172; Bevan v. Waters, 3 Carr. and Payne, •")20. 
 
 10 Gordon v. Cox, 7 C. and P. 172. 
 
Op Innkeepers. 365 
 
 action in the nature of a bill in equity.^ Within the city of London he 
 has such a right to sell by special custom, and beyond the city he has 
 no such right by the general custom, which is the common law of the 
 realm. Under the statute law of this State, innkeepers and carriers 
 may have unclaimed baggage sold on due notice, and the proceeds 
 applied first, to the payment of their charges and expenses, and the 
 balance paid over to the overseers of the poor, subject to be reclaimed 
 by the owner within seven years. ^ And while there does not appear 
 to be any reason to prevent the adoption of a rule permitting the inn- 
 keeper to sell the goods in his hands on which he has a lien, without 
 suit, in like manner as a pledgee may sell, on reasonable notice ; we do 
 not find any sanction for that practice. On the contrary, our law 
 requires a foreclosure by action ; and it now permits a foreclosure in 
 any court having jurisdiction of the amount.' 
 
 § 477. By the statute law of this State, boarding-house keepers have 
 the same lien as innkeepers have, upon the baggage and effects of a 
 boarder for the board due.* They stand in much the same relation, and 
 the intent of the statute is to protect them as a class ; ^ by giving to 
 them the same right to detain the goods of a boarder, as the law gives 
 to the innkeeper to detain the goods of a guest.^ The statute gives the 
 lien for the amount due for board.' And it is well understood that a 
 remedy thus given is to be carried into effect according to the intention 
 of the Legislature.' 
 
 1 Fox T. McGregor, 11 Barb. 41 ; 1 Str. 556; Pothonler v. Dawson, 1 Holt N. P. 383; 
 2 Kent's Conun. 642. See Trust v. Pirsson, 1 Hilton, 292. 
 
 2 2 K. S. of N. T. 984, 985, 6tli ed. Ante, §§ 317, 279, 287. 
 8 Code of Civil Procedure, §§ 1737-1741. 
 
 * Chapter 446, Laws of 1860. 
 
 ' Cady V. McDowell, 1 Lansing, 484. 
 
 6 Stewart v. McCready, 24 How. Pr. 62; Jones v. Morrill, 42 Barb. 623; S. C. 31 
 How. Pr. 639 ; the statute is modified in this particular. The right of lien is not 
 affected by the fact that there was a special contract as to board and lodging between 
 the boarding-house keeper and the boarder. Misch v. O'Hara, 9 Daly, 361. 
 
 ' Shaf er v. Guest, 6 Eobt. 264. 
 
 8 A literal interpretation of the N"ew York statute would defeat the intention of the 
 Legislature. Jones v. Morrill, supra; Stewart v. McCready, 24 How. Pr. 62. See 
 Cross V. WiUdns, 43 N. H. 332; Bayley v. Merrill, 10 Allen (Mass.), 360; and Gump v. 
 Showalter, 43 Penn. St. 507, interpreting like statutes of those States. Of course the 
 keeper of a boarding-house has no lien at common law on the goods of a boarder. 
 Southworth v. Myers, 3 Bush (Ky.), 681; and the livery-keeper has none. Parsons v. 
 Gingell, 4 Com. Bench, 545. Chapter 319, of the N. T. Laws of 1876, qualifies the 
 lien given to the keeper of a boarding-house in one respect; it provides that he shall 
 not have a lien upon or right to detain any property the title to which shall not be in 
 the boarder. The material section of the act now reads as follows : 
 
 "§1. The keeper of a boarding-house shall have the same lien upon and right to 
 
366 Law of Bail^ients. 
 
 The statute has not changed the rule of liability. The keeper of a 
 boarding-honse is not held liable for the goods of a boarder under the 
 same strict rule as the innkeeper is held for the goods of his guest. He 
 is not an insurer ; he fulfills his duty when he takes such care of the 
 goods of a guest as a prudent householder would take, in guarding 
 and protecting the house against thieves, and in the employment of 
 trustworthy servants.^ The keeper of a lodging-house, who lets rooms 
 by the day or by the week, does not assume any responsibility for the 
 safe-keeping of his lodger's goods ; he does not take them into his 
 custody.^ 
 
 § 478. The statute of the State assumes in some few particulars to 
 regulate the business of the innkeeper. With us it provides that he 
 shall post up in the office or public room and in the public parlors of 
 his house the rate of his charges by the day, and for meals, and for 
 lodging.^ It also provides for the granting of a license to the innkeeper 
 to sell strong or spirituous liquors and wines, to be drank on his prem- 
 ises.* The license system, which appears to have been established at 
 an early day, was introduced for the same reason on which it is con- 
 tinued ; namely, as a means of revenue, and as a mode of preventing 
 the increase of taverns, saloons and alehouses. The license adds a 
 new feature to the original business of the innkeeper ; ' and it briags 
 the business under the regulations of the statute. 
 
 In general, the duties of innkeepers are prescribed by the common 
 law in all these States, except Louisiana ; in which the innkeeper is 
 responsible as for a necessary deposit, for the effects brought by 
 travelers, whenever they are delivered into his care, or into the hands 
 of his servant ; and he is also responsible where the effects are stolen 
 or damaged by his servants or agents, or by strangers going or coming 
 in the inn ; but he is not responsible for what is stolen by force and 
 
 detain the baggage and effects of any boarder to the same extent and in the same 
 manner as innkeepers have such lien and right of detention; but nothing herein shall 
 be deemed to give to any boarding-house keeper any lien upon or right to detain any 
 property the title to which shall not be in suchboarder." A boarding-house keeper 
 has no right to detain the separate property of the wife for board of herself and hus- 
 band furnished under a special contract with the husband. Mcllvane T. Hilton, 7 
 Hun, 594; Birney v. Wlieaton, 8 State Eep'r, 347. 
 
 1 Dausey v. Eichardson, 2.5 Eng. Law and Eq. 76. 
 
 2 Holder v. Soulby, 8 Com. Bench N. S. 2.54; Cromwell v. Stephens, 2 Daly, 15. A 
 barber is not liable for a coat not properly delivered ; Trowbridge v. Shriever, 5 Daly, 
 11. 
 
 3 Chap. 677, Laws of 1807, as amended by chap. 802, Laws of 1871; Laws of 1883, 
 Chap. 227, § 3. 
 
 * Laws of 1892, Chap. 401, § 19. 
 
 5 Overseers of the Poor v. Warner, 3 Hill, 150. 
 
Op Innkeepers. 367 
 
 arms, or by the breaking open of his house, or by any other extraordinary 
 -violence.^ 
 
 § 479. The action against an innkeeper is based on his employment 
 and his failure to fulfill the duty imposed upon him by law.^ It is sus- 
 tained by showing a delivery to him as an innkeeper, and his failure to 
 restore the property, or his return of it in an injured condition.' The 
 presumptions are all against him, as they are against a common carrier ; 
 and he must excuse himself by showing a loss through the negligence 
 or folly of the guest, the act of God, or the public enemy ; * or by show- 
 ing that the guest refused to comply with his reasonable regulations in 
 respect to the deposit of the goods .' He cannot relieve himself from 
 liability by showing that he was sick or absent from home at the time 
 of the loss, or that the goods were sent with his servant to the depot, 
 or lost without his actual fault." 
 
 1 Code of La., Arts. 2935 to 2940; Woodworth. v. Morse, 18 La. Ann. 156. 
 
 2 Classen v. Leopold, 2 Sweeny, 105, 712. 
 
 s Seymour v. Cook, 53 Barb. 451; Metcalf v. Hess, 14 111. 129; Hulett v. Wood, 33 
 N. Y. 571. 
 
 * Wilkins v. Earle, 44 N. Y. 172; Allen v. Smith, 12 Com. Bench, N. S. 638; Best 
 on Evidence, § 430;Sasseen v. Clark, 37 Ga. 242; Calye's Case, 8 Co., 32 Roll. Abr. 4. 
 
 6 Hyatt V. Taylor, 42 N. Y. 258; Rosenplanter v. Roessle, 54 N. Y. 262; Purvis v. 
 Coleman, 21 N. Y. 111. 
 
 » Sasseen V.Clark, 37 Ga. 242; Calye's Case, 8 Co., 32; Roll. Abr. 4. 
 
368 Law of Bailments. 
 
 CHAPTER Vni. 
 
 SPECIAL AND QUASI-CAERIEES. 
 
 § 480. Contracts for the transportation of goods or property, made by- 
 parties not holding themselves out to the world as common carriers, 
 are to be enforced according to their terms. The contractor being a 
 special carrier, is bound only for the exercise of ordinary care, skill and 
 foresight ; ^ as where he engages to raft lumber or to drive cattle or to 
 transport a load of grain.^ 
 
 The proprietors of steamboats and tugs engaged in the business of 
 towing boats laden with merchandise, for hire, are not common carriers ; 
 they do not take the property into their custody, and they do not exer- 
 cise much control over it ; they supply the motive power, and the goods 
 remain in the custody of the master of the vessel which is being towed.' 
 They are not therefore liable as common carriers ; their liability is fixed 
 by the principles applicable to a simple contract. They are bound for 
 the exercise of reasonable care and skill in the fulfillment of their con- 
 tract ; and though they engage to tow a vessel at the " risk of the owner," 
 their agreement is not construed so as to excuse negligence on their part 
 resulting in damages to the owner of the boat or the goods on board.* 
 Both parties must exercise care and diligence, the master of the towing 
 boat and the master of the boat which is being towed; each to the 
 extent of his legitimate control over the movements of the boat.^ The 
 contract must be fairly fulfilled, according to its true intent.^ 
 
 § 481. There is a species of contract, much in use for the transporta- 
 tion of merchandise by water, known as a charter-party. It has two 
 
 1 Allen V. Sackridge, .37 N. Y. 341; Fish v. Clark, 2 Lansing, 176; 49 N. Y. 122. 
 
 2 Shaw V. Davis, 7 Mich. 318; Pike v. Nash, 1 Keyes, 335. 
 
 3 Wells V. Steam Nav. Co., 2 N. T. 204; Milton v. Hudson E. Steamboat Co., 37 
 N. T. 210; Arctic Fire Ins. Co. v. Austin, 54 Barb, •'j.jii; post, §§ 502, OSo; VarbleT. 
 Bigley, 14 Bush (Ky.), 0".)8. 
 
 * Wooden v. Austin, 51 Barb. 9; Arctic Fire Ins. Co. v. Austin, ."14 Barb. ."iJO; Alex- 
 ander V. Greene, 3 Hill, 9; S. C. 7 Hill, 533; Wells v. Steam Xav. Co., 8 N. T. 375. 
 
 5 Arctic Fire Ins. Co. v. Austin, .'34 Barb. 55'.); Milton v. Hudson Eiver S. Co., 4 
 Trans. Eep. 2.52; 37 N. T. 210. 
 
 6 Vanderslice v. Newton, 4 N. T. 130; Worth v. Edwards, 52 Barb. 40. 
 
Special and Quasi-Caeeibes. 369 
 
 forms. The owner in one form, retaining the possession and manning 
 and navigating his vessel, lets its capacity for carrying freight on a 
 given voyage or circuit of voyages, for a specified consideration ; this is 
 considered a contract of affreightment, and it usually contains a clause 
 by which the owner pledges the ship and the freighter the cargo, for its 
 fulfillment-^ And in the absence of this stipulation, the law implies the 
 same obligation.^ The charterer lades the vessel at his pleasure with a 
 cargo of goods belonging to himself or to third parties ; and where he 
 pays the hire agreed upon, the freight earned by the vessel in carrying 
 the goods of third parties, belongs to him ; the hire being due and unpaid 
 the owner has a lien on the goods for the freight earned in the transpor- 
 tation ; ^ and having delivered the goods, he is entitled to collect the 
 freight.* 
 
 The terms of the charter-party determine the rights of the parties 
 under it; they prescribe the voyage, or the length of the time for which 
 the ship is chartered ; her capacity, and the mode and time of lading 
 and unlading her.^ When the freighter hires a ship for the voyage, and 
 has the exclusive command and navigation of the ship, he is deemed the 
 owner for the voyage." This form of the contract is not much used. It 
 is a temporary transfer of the vessel, and the hirers stand in the place 
 of the owners navigating her.' 
 
 § 482. The ship, whether under a charter-party or not, derives her 
 character from the manner in which she is em[)loyed. Advertised as a 
 general ship, and remaining under the owner's command, the party ship- 
 ping goods on her without any knowledge of the charter-party, has the 
 same remedy against the owner as though no charter-party existed.^ 
 The owner is not liable as a carrier, by virtue of his ownership ; it is 
 the employment of a vessel, by the owner, or by the party chartering 
 her, which creates the liability.' 
 
 Between the parties to the charter-party, the owner navigating the 
 
 ^ The form of the contract is given in Clarkson v. Edes, 4 Cowen, 470. 
 2 The Brig Casco, Davies, 184. 
 
 ' Clarkson v. Edes, supra; Euggles v. Bucknor, 1 Paine C. C. 358; Chandler v. Bel- 
 den, 18 John. 162. 
 « Mactaggert v. Henry, 3 E. D. Smith, 390. 
 
 5 Roberts v. Opdyke, 40 N. Y. 259; Ashbnrner v. Balchen, 1 N. Y. 262; Robbins v. 
 t'cdman, 4 E. D. Smith, 315; Nelson v. Odiome, 45 N. Y. 489. 
 
 6 Marcadier v. The Chesapeake Ins. Co., 8 Cranch. 49; K. S. of U. S. 832. 
 ' Sherman v. Freame, 30 Barb. 478; 30 N. Y. 231, 241. 
 
 8 Breckle v. Knoop, Law R. 2 Exch. 125, 333. 
 
 ' Tuckerman y. Brown, 17 Barb. 191. The charterer engaging to return boats ' ' in 
 as good condition as they now are, with the exception of the ordinary use and wear," 
 does not insure them against the perils of the sea or risks of navigation. Ames v. 
 Belden, 17 Barb. 513. 
 
370 Law op Bailments. 
 
 ship earns freight on delivering the goods at the place agreed upon ; ^ 
 and pro rata itineris, where the goods are accepted voluntarily after a 
 part of the voyage has been accomplished. 
 
 § 483. 31aUs. The transmission of dispatches with speed and se- 
 curity, from one part of the country to another, is essential to the proper 
 exercise of the functions of government ; and we find the practice 
 established at an early day. In England it appears to have been ex- 
 panded first for the accommodation of the individuals composing the 
 royal court, and afterwards by degrees so as to subserve the convenience 
 of the whole people. It was not invented ; it grew up slowly into an 
 important branch of the public service, and is now with us organized 
 and maintained as one of the departments of the general government.^ 
 The Postmaster-General is appointed by the President, with the advice 
 and consent of the Senate ; and his duties are of a purely public and 
 executive character. He has no personal interest in the transmission of 
 letters, or in the conduct of the department ; he appoints and removes 
 postmasters of certain classes, and the President appoints and removes 
 others, with the advice of the Senate ; and each postmaster gives a 
 bond with sureties for the faithful discharge of all duties and trusts im- 
 posed upon him by law, or by the regulations of the department. The 
 whole postal service, including the money order system, and branching 
 out into endless particulars, is conducted and carried on uiider the sanc- 
 tion of statute law.' The Postmaster-General acts therefore as an 
 officer, and is not personally liable for the misconduct of those appointed 
 by him as officers in the service, or employed by him in carrying the 
 mails. He enters into no contract, and he receives no compensation 
 from the mdividuals whose letters are carried in the mail.^ The same 
 rule is applied in favor of a local postmaster ; he is bound to act with 
 integrity, and he must answer for the use of reasonable diligence in dis- 
 charging the duties of his office ; and thus acting he is not held liable 
 for the malfeasance or embezzlement of clerks and deputies duly em- 
 ployed by him.*^ 
 
 § 484. A local postmaster is a public officer, and as such answerable 
 
 ^ Cook V. Jennings, 7 Term, :i'-;]. 
 
 2 1!. .S. of U. S. 64. 
 
 3 It. S. of U. S. 7o.j-7S7. 
 
 ■1 I.ane v. Cotton, 1 Ld. Eay. 646; Wiitfield v. Despencer, Cowper, 7-34; Conwen v. 
 Vooi'liees, 13 Ohio, .523. 
 
 5 Wiggins V. Hathaway, 6 Barb. 632; Schroyer v. Lynch, 8 Watts E. 4.->.;; Dunlop 
 V. Monroe, 7 Cranch. E. 242; Bolan v. Williamson, 1 Brevard E. 181; Franlilin v. Low 
 and Swartwout, 1 John. E. 396; Maxwell v. Mclvry, 2 Bibb. E. 211; Kceiian v. 
 Southworth, 110 Mass. 474; Hutchins v. Brackett, 2 Foster, 232; Bishop v. William- 
 son, 2 Fairf. 4!I5. 
 
Special and Quasi-Caeeiees. 371 
 
 to the Government and to individuals for a faithful and proper discharge 
 of his duties ; to the Government for the discharge of his general duties 
 imposed by statute ; ^ and to individuals, in either a Federal or a State 
 court, for any failure in diligence resulting in damages, or for any mis- 
 feasance or nonfeasance resulting in special damages. E. g., a post- 
 master is liable for negligence, in permitting a letter containing money 
 to be stolen from his office ; '-^ and in an action of trover, for unlawfully 
 refusing to deliver mail matter to an individual, to whom it is ad- 
 dressed ' — even letters deposited for delivery at the same office.* 
 
 § 485. One officer is not answerable for another ; and it has been 
 thought that a mail contractor is not liable to an individual for money 
 lost through the carelessness of his agents carrying the mail ; he is cer- 
 tainly not chargeable on the theory of contract, and he can hardly be 
 considered an officer of the Government in the strict sense of that term.' 
 And yet the contractor has been held liable to third persons for an injury 
 sustained through the negligence of his agent, on the ground of the pub- 
 lic duty assumed by him, under the provisions of the statute law ; * and 
 there does not seem to be any valid ground for a distinction between the 
 liability of an officer and that of a contractor employed by the Govern- 
 ment under the provisions of a statute.' 
 
 § 486. Telegraph. Our telegraph companies render the community 
 a service similar to that of thePost-Offlce Department; they carry and 
 dehver messages for all persons, indifferently, for hire ; they resemble 
 common carriers, in the duty they assume to transmit messages for all 
 persons alike, without discrimination or preference ; and they dififer from 
 
 1 Strong V. Campbell, 11 Barb. 135, relates to the statute providing for the publica- 
 tion of a list of unclaimed letters in tbe paper having the largest circulation. 
 
 2 Coleman y. Frazier, 4 Eich. (S. C), 146; Bolan v. Williamson, 1 Brev. 181; S. C. 
 2 Bay, 551; Bishop v. Williamson, 11 Maine, 495. 
 
 8 Teall V. Felton, 3 Barb. 512; S. C. 1 N. T. 537; S. C. 12 How. U. S. 284. 
 
 * Nevlns v. Bank of Lansingburgh, 10 Mich. 547; Bank of Columbia v. Lawrence, 
 1 Peters, 578. 
 
 5 Conwell V. Voorhees, 13 Ohio, 523. 
 
 ^ Conwell V. Voorhees, 13 Ohio, 523. A maU contiftctor is not liable to the owner 
 of a letter containing money, transmitted by mail, and lost by the carelessness of con- 
 tractor's agents carrying the mail. The contractor is regarded as a public agent, and 
 not as a common carrier. Sawyer v. Corse, 17 Gratt. 230. Contra: A mail carrier is 
 not an officer of the Government, but Is the private agent of the contractor for carry- 
 ing the mail, and the contractor is liable to third persons for any injury or loss, as of 
 money in a letter, sustained through the negligence or default of such agent in the 
 performance of his duties. See Hall v. Smith, 2 Bing. E. 156; 9 Eng. C. L. E. 357; 
 HoUiday V. St. Leonards, 103 Eng. C. L. E.192. 
 
 'Eobinson v. Chamberlain, 34 N. T. 389; Hicks v. Dorn, 42 N. Y. 47; Hover v. 
 Barkhoof, 44 K. T. 118. 
 
372 Law of Bailments. 
 
 a common carrier in some important particulars ; ' notably, in the liabil- 
 ity which they assume for the safe and accurate delivery of messages. - 
 
 Being incorporated, these telegraphic companies possess the powers 
 and come under the liabilities prescril )ed by statute ; namely, the powers 
 conferred, to construct their lines ai)d carry on the business ; and the 
 duty imposed to receive dispatches from and for other lines, and from 
 and for any individual, on payment of their usual charges, and to trans- 
 mit the same with impartiality and good faith.= For the rest, they are 
 generally left to transact their business under the principles of the com- 
 mon law ; the statutes in the different States being the same in their 
 general scope and provisions.^ 
 
 § 4S7. These companies are not under the same liabihty as common 
 carriers ; their liability is regulated by contract and tlie nature of their 
 pubhc employment. In the absence of a special contract limiting their 
 liability, they are bound to transmit messages in the order received by 
 them, and with a care and diligence proportionate to the importance of 
 the business ; they do not insure the safe and accurate transmission of 
 messages.^ And where they stipulate that they will not be liable for 
 the accuracy of the message as delivered, unless it is repeated at half 
 price, they are not liable for an error in its delivery, unless it is repeat- 
 ed ; ° a rule to this effect is not regarded as unreasonable.' And when 
 the message is written upon a blank embodying the limitation, the rule 
 is to consider the printed notice as a proposition, which is assented to by 
 the act of sending the message.^ The object to be secured by repeating 
 the message, is accuracy in its delivery ; and hence the stipulation wUl 
 
 1 Breese v. U. S. Telegraph Co., 48 N. Y. 132; Leonard v. New York, etc., Tel. Co., 
 41 N. Y. 544, .571. 
 
 2 Id. ; Leonard v. N. Y., etc., Tel. Co., 41 IST. Y. .544, 569. 
 
 " Laws of 1890, Chap. 566, § 103. A telegraph company may make arrangements 
 with the proprietors or publishers of newspapers fcr the transmission for publication 
 of intelligence of general and public interest out of its regular order. Id. 
 
 * 8 Amer. Law Ucv. 457; the statute of Maine is a little more specific. 
 
 5 Breese v. U. S. Tel. Co., 48 N. Y. 1.32, 141; S. C. 45 Barb. 274; De Rutte v. K T. 
 A. & B. Tel. Co., 1 Daly, 547; S. C. 30 How. Pr. 4(13; Pearsall v. Western Union 
 Tel. Co., 124 N. r. 256; Kiley V: Western Union Tel. Co., 109 X. Y. 231. 
 
 s Western Union Tel. Co. v. Carew, 15 Mich. 525 ; Kiley v. Western Union Tel. Co., 
 109 N. Y. 231. 
 
 'Breese v. U. S. Tel. Co., supra, 48 N. Y. 132; Bennett v. Western Union Tel. 
 Co., 18 State Rep'r, 777; Eedpadi v. Western Union Tel. Co., 112 Mass. 71; Grinnell 
 V. Western Union Tel. Co., 113 Mass. 299; Schwartz v. Atlantic & Pacific Tel. Co., 
 18 Hun, 157; Clement v. Western Union Tel. Co., 137 Mass. 463. 
 
 8 Camp V. Western Union Tel. Co., 1 Met. (Ky.) 164; Ellis v. Amer. Tel. Co., 13 
 Allen, 226; M' Andrews v. Electric Tel. Co., 33 Eng. Law and Eq. 180; 17 Com. B. 3; 
 Kiley v. Western Union Tel. Co., 109 N. Y. 231 ; Breese v. U. S. Tel. Co., 48 N. Y. 
 132; Young v. Western Union Tel. Co., 65 N. Y. 163. 
 
Special and Quasi-Careibes. 373 
 
 not relieve the company from its liability for omitting to send the mes- 
 sage, or for any other like default or misconduct.^ 
 
 § 488. Under the statute of New Ydtk telegraphic corporations have 
 power to make such prudential rules, regulations and by-laws as they 
 deem necessary in the transaction of their business, not inconsistent 
 with the laws of the State or of the United States ; and acting under 
 this power, generally conferred upon these corporations, they may 
 limit their liability for mistakes, not occasioned by gross negligence or 
 willful misconduct, by a notice brought home to the sender of a mes- 
 sage ; as it is presumed to be, where he writes the message upon a 
 blank embodying the notice.'' 
 
 § 489. The liability of a telegraphic company to the sender of a mes- 
 sage is based upon contract ; the company impliedly engages to use 
 all reasonable care and diligence to transmit the message promptly and 
 accurately. Delay in sending the message may be excused, where the 
 sending of it becomes impracticable by a storm or by the sudden sick- 
 ness of an operator, temporarily preventing its transmission.^ And 
 an error or mistake in the delivery may be excused, where it is at- 
 tributable in part to the sender, or where it occurs without any want 
 of care or dihgence on the part of the company.^ Prima facie the com- 
 
 1 Bimey v. N. Y. & W. Tel. Co., 18 Md. 341; Mann v. Western Union Tel. Co., 37 
 Mo. 472; U. S. Tel. Co. v. Wenger, 55 Penn. St. 262; Gulf, Colorado, etc., Ey. Co. v. 
 Wilson, 69 Texas, 739; Western Union Tel. Co. v. Way, 83 Ala. 542; Harkness t. 
 Western Union Tel. Co., 73 Iowa, 190; Smith v. Western Union Tel. Co., 83, Ky. 104; 
 Mowry v. Western Union Tel. Co., 51 Hun, 126. 
 
 2 Camp V. Western Union Tel. Co., 1 Metcalfe (Ky.) 164; Ellis v. Amer. Tel. Co., 
 13 Allen, 226; M' Andrews v. Electric Tel. Co., 23 Eng. Law & Eq. 180; 17 Com. B. 
 3; Western Union Tel. Co. v. Carew, 15 Mich. .525; Bimey v. Tel. Co., 18 Md. 341; 
 New York & W. Printing Tel. Co. v. Drybrug, 35 Penn. St. 298; Lewis v. Great 
 Western R. Co., 5 Hurlstoue and N. 867; Grace v. Adams, 100 Mass. 505; Wolf v. 
 West. U. Tel. Co., 62 Penn. St. 87. But the company cannot by notice limit its lia- 
 bility for mistakes unless the notice is brought to the personal knowledge of the lender 
 and he assents to it. Pearsall v. Western Union Tel. Co., 124 N. Y. 256. Rules of a 
 telegraph company limiting its liability for mistakes do not apply to a liability occa- 
 sioned by its gross negligence or willful misconduct. Mowry v. Western Union, Tel. 
 Co., 51 Hun, 126; Pegram v. Western Union Tel. Co., 97 N. C. 57; Western Union 
 Tel. Co. V. Crall, 38 Kans. 679; Western Union Tel. Co. v. Howell, 38 Kans. 685. 
 And there are numerous cases holding that a telegraph company cannot contract that 
 it shall not be liable for negligence in falling to transmit a message; Western Union 
 Tel. Co. V. Way, 83 Ala. 542; Harkness v. Western Union Tel. Co., 73 Iowa, 190; or 
 for negligence in failing to deliver it. Smith v. Western Union Tel. Co., 83 Ky. 104; 
 Gulf, Colorado, etc., Ey. Co. v. Wilson, 69 Texas, 739. 
 
 8 Per Hunt, J., in Leonard v. The N. Y., A. & B. Electric M. Tel. Co., 41 N. Y. 
 544, 572; Brownell t. Flagler, 5' Hill, 282. Delay unexcused renders the company 
 liable for damages. West. Union Tel. Co. v. Ward, 23 Ind. 377. 
 
374 Law op Bailments. 
 
 laany is liable for an error in the delivery of a message ; and the rule 
 is the same where the message is couched in technical terms.^ Hence, 
 in an action by the sender, proof of error in the delivery entitles him 
 to recover ; and in an action by the receiver, the plaintiff is prima 
 facie entitled to recover on proving that a different message v, ... 
 delivered from that vs^hich was sent.^ 
 
 § 490. A telegraphic company is not answerable for the transmis- 
 sion of messages to a point beyond the termination of its line. Its 
 engagement, like that of a common carrier, impliedly binds the com- 
 pany for the prompt and accurate transmission of the message over 
 its line, and its delivery to the succeeding line ; ' but where it makes 
 an agreement and receives pay for the whole distance, by an arrange- 
 ment with other companies, it is liable according to the terms of the 
 contract, and must answer for the negligence of its auxiliaries.^ The 
 mere fact of receiving pay for the whole distance does not establish 
 the contract, or prove a partnership between the lines, or even a mutual 
 agency. The statute itself establishes the relation of the connecting 
 lines ; so that in the absence of other proof the delivery of a message 
 to the next line, is in effect like the transfer of goods by one carrier to 
 a succeeding carrier.^ The line commencing where another ends, is 
 obliged to receive and send forward the message ; ° and is not hable 
 for an error caused through the negligence of a prior line ; it being its 
 duty to transmit and deliver the exact message it receives.' 
 
 § 491. In what relation does the telegraphic company stand toward 
 the sendee of a message? This will depend upon the circumstances; 
 the company holds itself out to the community as ready and willing to 
 transmit intelligence for any and all persons, on payment of their 
 established charges ; and the contract is presumed to be made with the 
 person bearing the charges and interested in its correct and diligent 
 
 1 Eittenhouse v. Ind. L. Tel. Co., 1 Daly, 474; S. C. 44 N. Y. 263. 
 
 2 Idem; West. Union Tel. Co. v. Carew, 15 Micli. 525; Birney v. Tel. Co. 18 Md. 
 341. In an action against a telegraph company for damages for failing to accurately 
 or promptly deliver a message, the plaintiff makes out a prima facie case of negligence 
 by proving the delivery to it of the message and that it was not accurately or promptly 
 delivered. Pearsall v. Western Union Tel. Co., 124 N. T. 250. 
 
 3 Leonard v. The N. T., A. & B. Electric M. Tel. Co., 41 N". Y. 544. 
 
 4 De Eutte v. TheN. Y., A. & B. Tel. Co., 1 Daly, 547, 553; Quimby v. Vanderbilt, 
 17 N. Y. .306; Collins v. E. R., 7 H. L. Cas. 194. See Stevenson v. The Montreal 
 Tel. Co., 16 Upper Canada, 530. 
 
 6 Baldwin v. U. S. Tel. Co., 45 N". Y. 744; 1 Lans. 125; .54 Barb. 505; Squire v. T^'. 
 U. T. Co., 9 Mass. 2;;2. 
 
 6 U. S. Tel. Co. V. West. U. Tel. Co., 56 Barb. 46. 
 
 ' La Grange v. S. W. Tel. Co., 25 La. Ann. R. 383; Leonard v. N. Y. A. .t. B. E, 
 M. Tel. Co., 41 X. Y. .570. 
 
Speciai, AST) Quasi-Caeeieks. 375 
 
 transmission ; just as the contract with a carrier is presumed to be 
 made with the owner of the goods delivered to him, whether that be 
 the consignor or the consignee.^ 
 
 When a message is not sent on account of the party to whom it is 
 addressed, it cannot be said that the telegraphic company makes a con- 
 tract with him for its transmission. Its obligation to transmit and 
 deliver is imposed by law ; it is grounded upon the statute and upon 
 the public employment assumed by the company ; and there may be 
 circumstances under which the company must be held liable to the 
 sendee for its failure to transmit the message.^ Assuming to send the 
 message, the company must do so with diligence and accuracy, and it is 
 liable to the sendee in damages, when through its negligence it delivers 
 a different message from that received ; as where an order for goods 
 sent by telegraph is changed in the delivery, so as to call for a dif- 
 ferent article or for a larger amount.* The duty of the company being 
 of a public nature, it is liable to the party injured m an action on the 
 case for injuries resulting from its carelessness.* 
 
 § 492. Under an agreement between business men that their nego- 
 tiations shall be carried on by telegraph, each party assumes the risk 
 of the transmission ; to a like effect as where the negotiation is carried 
 on by letter.^ If an offer of sale be made by telegraph and accurately 
 transmitted, it may be accepted by a return telegram. The mode of 
 making the offer invites an acceptance in that manner. 
 
 When and to what extent dispatches sent by parties to each other by 
 telegraph are to be treated as written contracts or written evidence of 
 their contracts, must depend upon the circumstances in which they are 
 sent, and the intent and object for which they are transmitted and 
 received. Considering the company a public agent or the agent of both 
 parties, it is quite clear that the message left for transmission is the 
 original, and the message as delivered the copy ; and equally clear that 
 the sender cannot enforce the terms of an offer sent by telegraph in any 
 form or sense different from that in which they are delivered.'' A tele- 
 
 1 De Kutte v. The N. T., A. & B. Tel. Co., 1 Daly, 547, 555. 
 
 2 Trevor v. "Wood, 41 Barb. 255; S. C. 36 IST. T. 307. Here a failure to send the 
 message leaves the purchaser without any knowledge of his purchase. 
 
 = X. Y. & W. Printing Tel. Co. v. Drybrug, 35 Penn. St. 298; Leonard v. N. T. & 
 C. Tel. Co., 41 K. T. 544; contra, Playford y. U. K. Tel. Co., LawE. 4 Q. B. 706. 
 
 * Marshall v. York, etc., K. E., 11 C. B. 655; Alton v. Midland E. E., 19 C. B. N. 
 S. 213; Fairmount E. E. v. Stutler, 54 Penn. St. 375; Pippin v. Shepherd, 11 Price, 
 40; Gladwell v. Steggall, 5 Bing. N. C. 733. Forthegeneral rule, see Exchange Bank 
 V. Eice, 107 Mass. 37. 
 
 6 Trevor V. Wood, 41 Barb. 255; S. C. 36 N". Y. 307. 
 
 6 Durkee v. Vt. Central E., 29 Vt. 127; Mattheson v. Eoberts, 25 111. 591. 
 
376 Law of Bailments. 
 
 gram authorizing a draft on the sender for a given sum, is treated in 
 the hands of the sendee as an unconditional promise in writing to 
 accept the draft — virtual acceptance of it.^ And a telegram sent to fix 
 some detail or particular in an agreement, previously in negotiation 
 between the parties, does not constitute the contract, so as exclude 
 parol evidence to show the state of the negotiation when the telegram 
 was sent.^ 
 
 § 493. Whether a telegraphic company is to be regarded as a public 
 or as a private agent, it is liable in damages for the negligent conduct of 
 an operator, in sending false and fraudulent messages ; as where he 
 receives from a stranger an authority to draw, purporting to be signed 
 by the cashier of a bank, and transmits it without making proper 
 inquiries in respect to its genuineness, and it is acted upon by the 
 sendee, and turns out a forgery. The principal is liable for the negli- 
 gence of the agent.'' 
 
 § 494. The damages recoverable against a telegraphic company in an 
 action of tort, for negligence in transmitting and delivering a false and 
 fraudulent message, are such as result proximately and naturally from 
 the wrongful act.* The plaintiff recovers the damages he has sustained 
 through the defendant's negligence ; ° he does not recover as damages a 
 loss sustained by the fraudulent act of a third person, who finds his 
 opportunity in the act of negligence. E. g.. Brown leaves at defend- 
 ant's office in Chicago a message to be sent to plaintiff at Rochester, 
 requesting the latter to send him $500. Through the defendant's negli- 
 gence in transmittmg the message the amount is changed to 15,000 ; 
 and the plaintiff, supposing the message accurate, sends to Brown that 
 amount, and he appropriates the same to his own use and, absconds." 
 Here the defendant's negligence was not the proximate cause of the 
 loss.' The law regards the direct and immediate cause of the loss.' 
 It allows the damages sustained, where the defendant's negligence 
 defeats a sale of goods ; ' or where it prevents a purchase ; " or where it 
 
 1 Johnson v. Clark, 39 N. T. 216. 
 
 ''■ Beach v. Earitan & Del. Bay R. K. Co., 37 N. Y. 4.57; citing Potter v. Hopkins, 
 25 Wend. 417; Renard v. Sampson, 12 N. T. .566. 
 
 3 Elwood V. Western Union Tel. Co., 45 N. Y. 549; Lowery v. Western Union Tel. 
 Co., 60 X. Y. 19S. 
 
 * Elwood ^■. Western Union Tel. Co., supra. 
 
 s Webb V. R. W. & O. R. R. Co., 49 N. Y. 420. 
 
 6 Lowery v. Western Union Tel. Co., 60 K". Y. 198. 
 
 ' McGrew v. Stone, 53 Penn. St. 436, 440; Grain v. Petrie, 6 Hill, 522; Bigelow v. 
 Eeed, 51 Me. 325. 8 people v. City of Albany, 5 Lans. 524. 
 
 9 Squire v. W. IT. Tel. Co., 98 Mass. 232. 
 
 10 Eittenhouse v. Ind. Line of Tel., 44 N. Y. 263. 
 
Special and Quasi-Caeeiees. 377 
 
 induces a shipment of goods, not called for by the telegram as left for 
 transmission.^ The injured party is entitled to recover the damages 
 resulting naturally from the defendant's negligence, or breach of his 
 contract. 
 
 1 Leonard v. N. T., etc., Tel. Co., 41 N. T. 544 : the rule of damages is much con- 
 sidered in this case. 
 
378 Law op Bailmenis. 
 
 CHAPTER IX. 
 
 COMMON CARRIERS. 
 
 The internal and external carrying trade of a highly commercial 
 people forms no inconsiderable element in the national prosperity. To 
 the carrier, as the agent of commerce, is committed the wealth of mer- 
 chandise shipped on the seas from port to port, and carried along all 
 our rivers, railroads, canals and lakes. In the interest of a business 
 whose influence is so extensive in civil life, the law accords to this 
 subject an important place in our system of jurisprudence, giving to it 
 a consideration proportioned to the numerous and various relations 
 which it involves. 
 
 § 495. Who are Common Carriers. A person is not a common 
 carrier who on a single occasion sends his servant to transport goods 
 belonging to a particular individual, from one place to another, as from 
 Albany to Schenectady.^ To constitute him a common carrier, he 
 must be one who, as a regular business, undertakes for hire or reward to 
 transport the goods of such as choose to employ him, from place to 
 place.'* He is not a common carrier, unless his employment be to carry 
 goods generally for any one, so as to imply a public engagement to 
 serve all persons alike on being tendered a suitable reward.'' In other 
 words, if he undertake for hire or reward to transport the goods of all 
 persons, indifferently, that is, of all such persons as choose to employ 
 him, from place to place, he is a common carrier ; ^ and his employ- 
 ment is of such a public character as obUges him to accept business 
 whenever it is offered to him on reasonable terms. ^ 
 
 The character is assumed by the manner in which a man conducts 
 his business : he is a common carrier where it is his practice to carry 
 
 1 Satterlee v. Groat, 1 Wend. R. 272. • 
 
 2 Blanchard v. Isaacs, 3 Barb. R. 338; Bissell v. New York Cent. R. R. Co., 29 Barb. 
 602, 612; The Dan, 40 Fed. Rep'r, 691; Johnson v. Pensacola, etc., R. K. Co., 16 
 Fla. 623. 
 
 8 Trent and Mersey Nav. v. Wood, 3 Esp. R. 12'7; Story on Bailm. § 495. 
 * Gisbourne v. Hurst, 1 Salk. 1!. 249; Dwight v. Brewster, 1 Pick. R. .50; Varblev. 
 Bigley, 14 Bush (Ky.), 698. 
 6 Alexander v. Greene, 3 HiU, 9, 20. 
 
Common Caebiebs. 379 
 
 parcels, generally, for hire; or where he carries goods habitually for 
 hire, in connection with another and more direct business.^ A man is 
 not a common carrier, unless he holds himself out to the world in that 
 capacity.^ And yet he may assume the obligations of a common carrier 
 by a contract.^ 
 
 § 496. The burden of proof rests with the party seeking to charge a 
 person or a company as a common carrier. Where a steamboat com- 
 pany has been in the habit of carrying money for hire, or have held 
 themselves out to the public as common carriers of money and bank 
 bills, they are answerable in that capacity.* And the company is not 
 Uable for the loss of packages of bank bills, entrusted to the captain of 
 their, boat, unless it is shown that they have made the carriage of such 
 packages a part of their ordiaary business ; in the absence of such 
 proof, a delivery of a package of bank bills to the captain to be carried, 
 from one point to another on his trip, is to be deemed a personal trust ; 
 especially where the compensation is a personal perquisite, and the 
 package is delivered to the captain as a trustworthy person, without 
 authority to receive and carry such packages.'' Carriers, like other 
 people, have the right to limit the scope of the business they carry on ; 
 they are not obliged to'enter upon the business of transporting money 
 packages." 
 
 § 497. No person is a common carrier, in the sense of the law, who 
 is not a carrier for hire. It is not necessary that the compensation 
 should be fixed by an agreement, and it is not necessary that the goods 
 or property should be entered upon a freight list, or that the contract 
 should have any written form. The law implies the contract from the 
 delivery of the goods, properly addressed;' ftom a delivery which 
 places them within the carrier's custody for transportation.' A 
 delivery to his agent or servant of such goods as it is the carrier's custom 
 
 1 Gordon v. Hutchinson, 1 Watts and Serg. 285; Sheldon v. Eobins,on, Y N. H. 157; 
 Dwight V. Brewster, 1 Pick. E. 50; 29 Barb. 602, 612; Hale v. N. J. Steam Nav. Co;, 
 15 Conn. 539. 
 
 2 Allen V. Sackbrider, 37 N. T. 341; Fish v. Clark, 49 N. T. 122. 
 
 ^ Stephens and Condit Transp. Co. v. Tuckerman, 33 K. J. (Law) 543. 
 
 * Citizens' Bank v. Nantucket S. Co., 2 Story E. 16. 
 
 6 Sewell V. Allen, 6 Wend. 335; S. C. 2 Wend. 327; Blanchard v. Isaacs, 3 Barb. 388. 
 If the driver of a stage is allowed, as a part of his compensation, to carry packages, 
 and he does so, and the agreement is not known to the party delivering a parcel to be 
 carried, the employers are liable. Bean v. Sturtevant, 8 N. H. 146. 
 
 6 Halsey v. Brown, 3 Day E. 346; Eenner v. Bank of Columbia, 9 Wheat. 590. 
 
 ' Citizens' Bank v. Nantucket S. Co., 2 Story, 16; Harmon v. N. Y. and Erie E. Co., 
 28 Barb. 323; MeCotter v. Hooker, 8 N. T. 497; Sewell v. Allen, 6 Wend. 335, 350. 
 
 8 Merriam v. Hartford and N. H. E. Co., 20 Ct. 354; Trowbridge v. C:hapin, 23 Ct. 
 595. 
 
380 Law of Bailments. 
 
 to receive, is a delivery to himself; and this is so where the goods are 
 so nearly within the line of the business that the person delivering 
 them has reason to believe that they are fairly within the scope of the 
 agent's authority to receive and transport.^ 
 
 § 498. A carrier of passengers is liable as a common carrier of their 
 baggage. Thus, a company using steamboats and railroads for the 
 transportation of passengers and their baggage, are liable as common 
 carriers for damages happening to the baggage from a defect in the 
 vehicles or machinery used, although the company is not chargeable 
 with actual negUgence, or want of skill, in securmg the safety of the 
 baggage ; and nothing will excuse the company but inevitable accident 
 arising from sux^erhuman causes, or the acts of the enemies of the coun- 
 try.^ The rule fixing the responsibility of common carriers, does not 
 apply to the carrying of passengers i ir mtelligent beings : and so the 
 company are not liable in damages for injuries to passengers, where they 
 have done all that human care and foresight can do to insure their 
 safety.^ 
 
 § 499. We have two classes of common carriers, namely, carriers by 
 sea, and inland carriers, by land or water ; and in the aggregate body 
 are included railroad companies, the owners of stage-wagons and coaches, 
 who carry goods as well as passengers for hire ; wagoners, teamsters, 
 cartmen, the masters and owners of ships, vessels and all water-craft, 
 including steam vessels, belonging to internal as well as coasting and 
 foreign navigation, lightermen, ferrymen, and express companies ; all 
 who engage in business as general carriers.* It is the mode of transact- 
 ing the business, and not the ownership of the conveyances employed 
 in it, that renders a party liable as a common carrier.^ 
 
 § 500. Cartmen, draymen and porters are not common carriers, when 
 they are employed by a person accompanying them, or continuously by 
 a single firm; " and they are common carriers when they make it their 
 business to carry goods or packages, from one part of the town to 
 another, for so much a load or parcel, at the request of any person; they 
 come within the general deflnitinn, and have bef^n adjudged liable as 
 
 ^ Halsey v. Brown, supra, and Eenner v. Bank of Columbia, supra, and Sewell T. 
 Allen, 6 Wend. 3:i5, ?>r,(). See Isaacson y. New York Cent. & H. K. E. K. Co., 94 
 N. T. 278, 285. 
 
 2 Camden and Amboy R. and T. Co. v. Burke, 13 Wend. 611. 
 
 8 Boyce v. Anderson, 2 Peters U. S. R. 150; Christie v. Griggs, 2Campb. 80; Carroll 
 V. Staten Island E. E. Co., 58 N. Y. 126. 
 
 * 2 Kent's Comm. 598, 599; Sweet v. Barney, 23 N. Y. 335. 
 
 6 Rogers v. Wbeeler, 43 N. Y 598; 9 Allen, 47; 29 Vt. 421. 
 
 8 Ante, § 393 shows the relation in which they stand to their employers ; Eobinson 
 V. Dunmore, 2 Bos. and Pul. R. 417; Brind v. Dale, 8 Carr. and r. 'JOT. 
 
Common Caekiees. 381 
 
 common carriers.^ On the same ground, a city express company, en- 
 gaged in carrying baggage to and from the different railroad depots, is 
 treated and held liable as a common carrier.^ Practically no discrimina- 
 tion can be made between carriers, grounded on the length of the route 
 over which they carry goods or parcels. 
 
 § 501. The Wagoner. Formerly, in this country as well as in Eng- 
 land, much of the carrying business by land was done by wagoners 
 and teamsters, who followed it as a regular employment, holding them- 
 selves out to the community as ready to receive and carry any goods 
 that might be offered to them on their route;" and they were held com- 
 mon carriers ; the word common being used to distinguish them from one 
 who undertakes for hire, to carry goods for another, on a particular oc- 
 casion.^ In some of the States, farmers carried their own goods to 
 market, and on their return transported goods into the interior of the 
 State, taking such loads as they could find ; and though the carrying 
 of goods in this manner was not their principal business, they were con- 
 sidered common carriers.'^ Without questioning the authorities to this 
 effect, it deserves to be noticed that a man cannot be held liable as a 
 common carrier unless he engages in the business ; that he becomes a 
 common carrier of only that class or line of goods which he assumes to 
 carry, generally, for hire ; and that he has a right to withdraw from the 
 business.' 
 
 § 502. Proprietors of Stage Coaches. Originally the proprietors, run- 
 ning a line of stage-coaches, were not regarded as common carriers in 
 any sense ; they carried passengers for a compensation, without making 
 any separate charge on account of their baggage.' Subsequently a 
 
 1 Kobertson v. Kennedy, 2 Dana, 430; Dibble v. Brown, 12 Georgia, 217; Eobinson 
 V. Cornish, 34 State Eep'r, 695. 
 
 2 Richards v. Westcott, 2 Bosw. 589; S. C. 7 Bosw. 6; Verner v. Sweitzer, 32 Peun. 
 St. 208; Parmalee v. Lowitz, 74 111. 116. 
 
 ' In this State, before the Erie Canal was opened, goods were usually carried west- 
 ward from Albany, to the young and thriving towns of middle and western New Torli, 
 in great wagons drawn by three or four horses, in charge of a competent teamster; 
 and the business was both important and lucrative. There was no other mode of 
 transportation. When Adam Smith's "Wealth of Nations" was first published, 
 1776, "a broad wheel wagon, attended by two men, and drawn by eight horses, 
 carried and brought trade between London and Edinburgh in about six weeks' 
 time " — a slow-going and yet solid looking picture of olden times. 
 
 * Gisbourne v. Hurst, 1 Salk. 249; Cro. Eliz. 596. 
 
 ' Gordon v. Hutchinson, 1 Watts and S. 285; Powers v. Davenport, 7 Blackf 4.(7; 
 Lecky v. M'Dermot, 8 Serg. and R. 500; Chevallier v. Straham, 2 Texas, 115. 
 
 8 Satterlee v. Groot, 1 Wend. 272 ; see discussion in Alexander v. Greene, 7 Hill, 
 .533; see Fish V. Chapman, 2 Kelly, 349; McClure v. Richardson, 1 Rice, 215; Jenkins 
 v. Pickett, 9 Terg. 480. 
 
 ' Middleton v. Fowler, 1 Salk. 282; Upshare v. Aidee, 1 Comyns, 25; Jeremy on 
 Carr. 11, 13; Stewart v. London and Northwestern E. Co., 3 H. and C. 139. 
 
382 Law of Bailments. 
 
 custom grew up on some routes, of charging freight for the conveyance 
 of all baggage exceeding a certain weight ; and under this custom they 
 were soon treated as common carriers of the baggage thus specifically 
 received and carried as freight; -and finally as common carriers of all 
 baggage carried with passengers, on the ground that compensation for 
 its conveyance is included m the passenger's fare.^ There is a tacit 
 understanding to that efiiect, an implied contract that the fare paid 
 covers baggage. 
 
 The proprietor of a line of coaches cannot limit liis liability for bag- 
 gage, by a notice printed on a ticket or posted conspicuously ia his 
 oflice ; or even by a notice brought home to a passenger's attention. 
 He is not allowed to exempt himself from his legal liability.^ His ha- 
 bility can only be qualified by a contract. 
 
 The carrier's implied contract is to carry his passenger's luggage ; » 
 which is understood to include such articles of necessity or personal 
 convenience as are usually carried by passengers for their personal 
 use, and not merchandise or other valuables carried in trunks for other 
 purposes, such as sale and the like* With much Uberality in 
 determining the things which may be carried as baggage,^ the law does 
 not hold the carrier liable for such articles as cannot be fairly thus 
 carried ; such as silver plate, samples of goods, or merchandise, packed 
 with baggage, or money exceeding the amount required for traveling 
 expenses." There is no implied understanding that articles like these 
 may be carried as baggage. Received as freight or with knowledge of 
 their character and value, the carrier is liable for them.' 
 
 § 503. In respect to their principal business, the proprietors of a line 
 
 1 Kichards v. London, B. & ii. C. R. Co., 7 C. B. 8:!9; Great Western R. v. Good- 
 man, 12 C. B. 313; 11 Eng. L. ami Eq. 54(j; Brooke v. Pickwick, 4Bing. 218. Ante, 
 § 498; Orange Co. Bank v. Brown, !) Wend. S";; Pardee v. Drew, 2.5 Wend. 459; 
 Dexter v. Syracuse, B. & X. T. K. K. Co., 42 X. Y. 320. Isaacson v. Xew York Cent. 
 & H. Pv. R. R. Co., '.14 X. Y. 2'7S, 283. 
 
 " Clark V. Faxton, 21 Wend. 153; HoUisterv. Xowlen, 19 Wend. 234; Dorr v. N. J. 
 Steam Nav. Co., 11 N. Y. 485; Cole v. Goodwin, l;i Weud. 251; Blossom v. Dodd, 43 
 N. Y. 204; Brook v. Pickwick, 4 Bing. E. 218; Jones v. Voorliees, 10 Ohio, 145. 
 
 s Powell v. Myers, 20 Wend. 591. 
 
 * Orange Co. Bank v. Brown, 9 Wend. 85; Pardee v. Drew, 25 Wend. 459. 
 
 6 Merrill v. Grinnell, 30 N. Y. 594; Van Horn v. Kermit, 4 E. D. Smith, 453; Mo- 
 Cormiok v. Hudson River R. R. Co., Id. 181, 10 How. Pr. 380. 
 
 6 Dexter v. Syracuse, B. * X. Y. R. R. Co., 42 N. Y. 320; Bell v. Drew, 4 E. D. 
 Smith, 59; Hawkins v. Hoffman, O Hill, 580; Grant v. Xewton, 1 E. D. Smith, 95; 
 SON. Y. 594. Chicago, etc., U. R. Co. v. Boyce, 73 111. 510; Blumenthal v. Maine Cent. 
 R. R. Co., 79 Me. 550; Michigan Cent. R. R. Co. v. Carrow, 7:1 111. 348. 
 
 ' Stoneman v. Erie Railroad Co., 52 X. Y. 429; Hannibal Railroad v. Swift, 13 Wall. 
 262; Sloman v. Great Western R. R. Co., 07 X. Y. 208. 
 
Common Cakeiees. 383 
 
 of stage coaches are liable as carriers of passengers ; without insuring 
 the absolute safety of their passengers, they do undertake to carry them 
 safely as far as human care and foresight will go ; in other words, they 
 engage for the utmost care and diligence of very cautious persons.^ 
 We shall consider this liability more fully in its proper place. In 
 respect to such goods, packages and parcels as they carry habitually 
 for hire, they are common carriers, and their liability is the same as if 
 that were their sole business.^ They are thus liable, when they engage 
 in the business and hold themselves out to the community as ready 
 and willing to carry such packages or parcels ; and when such goods or 
 parcels are carried on their account.^ It being shown that they are 
 engaged in the business, a delivery to their agent to receive and carry, 
 is sufficient to charge them.* A delivery alone, unaccompanied by such 
 evidence, is not sufficient ; as where the driver of the ^age is permit- 
 ted to carry packages on his own account, and he does not assume to 
 act on behalf of the company ; ' and the arrangement is known to the 
 parties dealing with him." The driver in this case acts as an ordinary 
 bailee for hire.' 
 
 § 504. Hackney coachmen are not ordinarily regarded as common 
 carriers, their employment being intended chiefly for the convenience 
 of persons ; ^ they certainly cannot be charged as common carriers of 
 goods, where they simply carry passengers who retain in their custody 
 packages and parcels, or articles of clothing.' And yet where it is their 
 business to carry passengers and their baggage, after the manner of a 
 stage coach, there does not appear to be any good reason for exempting 
 them from the liability of carriers. Cabmen and the proprietors of an 
 omnibus, employed in like manner, stand upon the same footing ; 
 they are common carriers of the baggage of passengers, when they 
 receive and carry it in the due course of their business. The fact that 
 
 1 Camden & Amboy K. & T. Co. v. Burke, 13 Wend. 611 ; Sharp v. Grey, 9 Bing. 
 457. 
 
 2 Dwight V. Brewster, IPick. 50; Allen v. Sewall, 2 Wend. 327; S. C. 6 Wend. 335; 
 Jones V. Voorhees, 10 Ohio, 145; Merwln v. Butler, 17 Conn. 138; Powell v. Mills, 
 30 Miss. 231; Ante, §496. 
 
 ' McHenry v. Railroad Co., 4 Harr. (Del.), 448; Beekman v. Shouse, 5 Rawle, 179; 
 Middleton v. Fowler, 1 Salk. 282; Blanchard v. Isaacs, 3 Barb. 388. 
 *Witbeck V. Schuyler, 44 Barb. 469; 39 X. T. 34; Ball v. IST. J. S. Co., 1 Daly, 491. 
 
 5 Bean v. Sturtevant, 8 N. H. 146; Butler v. Basing, 2 Carr. and P. 614; 3 Barb. 
 388. 
 
 6 Allen Y. Sewall, supra; Mayall v. Boston & Maine E. E. Co., 19 N. H. 122; F. & 
 M. Bank v. C. T. Co., 23 Vt. 186; King v. Lenox, 19 John. 235. 
 
 ' Sheldon v. Eobinson, 7 K H. 157. 
 
 8 Upshare v. Aidee, 1 Comyns, 25; Acton v. Heaver, 2 Esp. 533. 
 
 " Tower v. U. & S. E. E. Co., 7 Hill, 47. 
 
384 Law of Bailments. 
 
 they carry over a short route, or to any point within the limits of a 
 town, should not prevent them from being treated as public carriers.' 
 
 § 505. Ferries. In this State only those who are properly licensed 
 are permitted to keep a ferry, and transport for hire persons or goods 
 and chattels over any river, stream or lake.^ The State has the right to 
 and does provide a means of regulating the business, with a view to se- 
 cure the protection of the public.^ The statute law does this, without 
 \indertaking to prescribe rules, fixing the ferrymen's liability for his 
 acts of negligence ; his liability is therefore to be ascertained from the 
 common law.^ » 
 
 A ferryman is a carrier of passengers, and as such under the usual 
 obligation to use the highest care in every part of his business — an 
 obligation imposed by the common law, and quite independent of any 
 personal contract.* He is bound to employ a safe and sufficient boat, 
 with suitable platforms and conveniences for the ingress and egress of 
 passengers ; a duty much varied m details, by the situation and circum- 
 stances of the ferry.'' He is bound also for the use of the highest skill 
 and care m the management or navigation of his boat ; and this duty 
 becomes still more strict where his boat is propelled by steam.^ 
 
 Is the ferryman a common carrier ? He is when he acts in that ca- 
 pacity. He is certainly, in respect to those goods and chattels which 
 he takes into his custody, so that he has the entire care of them ; and, 
 it is adjudged, that he is not thus liable for the absolute safety of prop- 
 erty retained by a passenger in his own custody and under his own con- 
 trol.^ The decision consists well with the rule applied where one boat 
 
 1 Bibble v. Brown, 12 Georgia, 217; Parmelee v. McNulty, 19 111. 551); Ross v. Hill, 
 2 C. B. 877; 3 Dowl. and L. 7S8; Dickinson v. Winchester, 4 Cusli. 114; Common- 
 wealthv. Fahey, 5 Cush. 4US; ante, § 500. 
 
 2 Laws of 1890, Chap. 568, § 170, as amended by Chap. 212, Laws of 1891; and by 
 Chap. 686 of Laws of 1892. 
 
 2 Gibbons v. Ogden, 9 Wheat, 1 ; People v. Babcock. 11 Wend. 5S0. Albany and 
 New York, and perhaps one or two other old cities, have by charter a power over the 
 ferries within their limits. Aikin v. Western E. Co., 28 N. T. 370; Costar v. Brush, 
 25 Wend. 028; 10 Barb. 223; 32 Barb. 102. 
 
 * Miller v. Pendleton, 8 Gray, 547. 
 
 5 Carroll v. Staten Island K. E. Co., 58 N. Y. 126, 183; Bretherton v. Wood, 3 Brod. 
 and Bing. 54; Philadelphia & Reading E. R. Co. v. Derby, 14 How. U. S. 483. 
 
 « Hazman v. Hoboken L. I. Co., 2 Daly, 130; S. C. 50 N. Y. 53; McPadden v. N.T. 
 Central E. E. Co., 44 N. Y. 478; Caldwell v. N". J. Steamboat Co., 47 X. Y. 282. 
 See Loftus v. Union Perry Co., 84 N. Y. 455. 
 
 ' Carroll v. Staten Island E. E. Co., supra; and Caldwell v. N. .1. Steamboat Co. 
 supra. 
 
 s Wyckoff V. Queens Co. Ferry Co., 52 N. Y. 32; Harvey v. Rose, 26 Ark. 3; S. C. 
 7 Amer. E. 595; Yerkes v. Sabin, 97 Ind. 141. A ferryman is not a common carrier 
 unless he carries for hire : Self v. Dunn, 42 Ga. 528. 
 
Common Caeeibrs. 385 
 
 is engaged in towing another which is left in the possession of its 
 owner.^ If a man drive a horse and wagon on a ferryboat and retain 
 them under his control, the ferryman cannot fairly be charged with the 
 full liabilities of a common carrier of the property. Both parties have 
 duties to perform hi respect to it ; the owner is bound to x^reserve it with 
 all reasonable care ; and the ferryman is bound to extreme dihgence and 
 care to provide a sufficient boat and suitable guards, barriers and appli- 
 ances for the safe transportation of the property, and for the diligent 
 use of all the means in his power to insure its safety. He is liable for 
 any damages or loss arising from his neglect ; "^ and he does not insure 
 the safety of property retained by the owner under his own hand, or 
 worn upon his person.* 
 
 § 506. Slany writers and some decisions hold the ferryman liable a.; 
 a common carrier for the safety of horses and carriages received and 
 transported by him in the usual manner ; and they base his liability 
 upon these grounds : first, his right to place them on the boat whern 
 he deems pro]3er, and under such regulations and restrictions as may 
 enable him to secure their safe transit ; and second, the similarity be- 
 tween his situation and that of a carrier along the river, together with 
 the difficulty of discriminating between carriers of property up and 
 down the stream, and carriers from one shore to the other.^ By com- 
 mon consent, the law must be applied to all carriers alike, under like 
 
 1 Ante, §480; Milton v. Hudson Elver S. Co., 371^. Y. 210; Brown v. Clegg, 63 
 Penn. St. 51. 
 
 2 White V. Winnisimmet Co., 1 Cush. 155; Clark v. Union Ferry Co., 35 N. T. 485; 
 Willoughby V. Horridge, 12 C. B. 742; Walker v. Jackson, 10 Meeson and W. 161; 
 Wyckoff V. Queens Co. Ferry Co., 52 K. T. 32. 
 
 s Wyckoff V. Queens Co. Ferry Co., 52 N. Y. 32; Cohen v. Hume, 1 McCord, 439. 
 
 * Wilson V. Hamilton, 4 Ohio St., 722. This was an action to recover of the defend- 
 ant as a common carrier the value of a wagon and four horses and harness lost in 
 crossing the Ohio river on the defendant's ferryboat. The court held the defendant, 
 a ferryman occupying a position in a line of public travel, a common carrier, and as 
 such subject to all the liabilities incident to that position; that he is a common car- 
 rier of living animals ; and, grudgingly, that his liability may be qualified where the 
 owner of a horse and wagon selects his own place upon the boat and retains the ex- 
 clusive custody of them. In Fisher v. Clisbee, 12 111. 344, the same rule was held in 
 respect to a horse and harness and buggy driven by a servant upon the defendant's 
 ferryboat — a ferry across the Illinois river, at Lacon. The court considered the 
 property to be in the ferryman's possession, and under his orders; meanwhile the 
 owner's servant held the horse by the head. See Angell on Carriers, §§ 82, 109, 130, 
 165. 
 
 POWELL V. MILLS, 37 Miss. 691. OpiNiOKr bt Handy, J. 
 
 " This action was brought by the plaintiffs in error against the defendants, as ferry- 
 men, to recover for the damage done to certain goods in the care of the plaintiffs, as 
 proprietors of a line of stage-coaches for transportation, by the stage-coach being 
 
 25 
 
386 Law op Bailments. 
 
 circumstances ; if the owners of a steamboat run it up or down a river 
 as a carrier of freiglit, they are justly liable as common carriers of 
 
 thrown from the defendants' ferryboat, in consequence of which the goods were wet 
 and became damaged. 
 
 " The facts, as set forth in the bill of exceptions, are in substance: that the defend- 
 ants were in the habit of taking the stage-coaches of the iilaintifls across their ferry 
 for hire, and on the occasion wlien the damage complained of was done, the plaintiffs' 
 driver drove the coach and horses into the ferryboat, then got off his seat, after he had 
 tied up the lines, taking his bucket to water the horses. The ferryman noticed the 
 driver watering the horses. No one was holding the horses when they started out of 
 the boat, the driver being engaged in watering those in front. The horses ran out of 
 the boat before it reached the landing, and the coach was thrown into the river. After 
 the driver left his seat he had no hold of the horses or of the liiies until the horses 
 ran out. The ferryman was talking to the driver whilst he was watering the horses, 
 and it does not appear that he made any effort to quiet them or prevent injury being 
 done by them ; the driver was taken into the river, as if taken by the horses in his 
 efforts to stop them. The ferry was a public one, kept by the defendants, who re- 
 ceived comiiensation by contract with the plaintiffs for transporting their staue-coaches 
 and horses ; and it is admitted that the goods in the plaintiffs' coach were injured by 
 their submersion. 
 
 " A verdict was rendered for the defendants, and thereupon the plaintiffs moved for 
 a new trial; 1st, Because the verdict was contrary to law and the e^-idence; and 2n(l, 
 Because erroneous instructions were given by the court for the defendants; and the 
 judgment was reversed, and the cause remanded for a new trial. * * * 
 
 "After the stage-coach and horses were received into the ferryboat, they were in the 
 charge and keeping of the ferryman, and it became his duty to make such provisions 
 as were required from the nature of the property committed to his charge to insure its 
 safe transportation. This indeed is the very substance of the obligation incurred by 
 the natm-e of the business. The responsibility of safely keeping the property during 
 the passage across the river, and of employing all the means necessary to that end, 
 was transferred from the owner to the carrier by the fact of receiving it into the ferry- 
 boat; and it devolved upon the defendants to show that the accident which caused the 
 damage occm-red by some of the means above mentioned, as exempting them from 
 liability. 
 
 " There is no pretense that there was any exception in the contract exempting them 
 from responsibility in such a case; or that the accident was inevitable, in the proper 
 legal sense of the term, or could not have been prevented by the construction of bar- 
 riers around the boat, or the employment of servants to secure the horses, or by causing 
 them to be loosed from the coach. It was the duty of the defendants to take these 
 precautions in receiving the property, and becoming bound to transport it safely, and 
 they are responsible for the damage unless they were relieved from their responsibility 
 by the plaintiff s' , or their driver, taking upon themselves to keep the horses safely. 
 But there is no positive evidence of such an undertaking, nor can it be justly inferred 
 from the conduct of the driver on the occasion. 
 
 " It appears that the driver drove the horses attached to the stage coach into the 
 boat, and after tying the lines, he left the box and proceeded to water the horses. He 
 did not continue to hold the lines, nor say anything showing that he had taken upon 
 himself the safe-keeping of the horses: and the only circumstance tending to shovr 
 that they were in his keeping at the time, is the fact that he was carried into the river 
 
Common Caeriees. 387 
 
 horses and cattle which they receive on board for transportation, when 
 they take them into their care and custody .^ They are thus liable, 
 with this exception : they do not insure against injuries, resulting from 
 the propensities and nature of the animals, and which cannot be pre- 
 vented by foresight, diligence and care.^ On the other hand, when a 
 common carrier, a railway company for example, makes a special con- 
 tract for the transportation of cattle, leaving the owner to put them on 
 board and accompany and take care of them, the agreement creates a 
 relation different from that which arises when the carrier takes the 
 cattle into his exclusive custody.^ The carrier does not assume the 
 entire custody of the cattle, and he does not come under the full re- 
 sponsibility of a common carrier; indeed, he does not, in the absence of 
 a special contract, become liable for damages caused by an occurrence 
 incident to the carriage of live animals m a railroad car, where he could 
 not have prevented the injury by the exercise of diligence and care.* 
 
 by the horses. But this might have been done by efforts to stop them, by seizing the 
 bridle, which he would very naturally use, as he was standing before them and water- 
 ing them when they started off. It is not sufficient to show that he had undertaken 
 to keep them safely, but is more properly to be regarded as an effort to aid the ferry- 
 man in performing his duty : and the fact that he left them and proceeded to get water 
 for them immediately after , driving them into the boat, tends much more strongly to 
 prove that they were in the keeping of the ferryman. 
 
 " There appears therefore to be nothing in the circumstances sufficient to exempt 
 the defendants from the responsibility resting upon them from the nature of their 
 undertaldng." 
 
 The contract implied by law must be ascertained from the actual intent of the parties. 
 It is inferred from the facts ; and it is quite clear that a person driving a team har- 
 nessed before a wagon, loaded with goods, does not ordinarily intend to deliver the 
 property into the custody of the ferryman. He keeps the reins in hand; and he does 
 not so entrust the ferryman with the goods, as to charge him for their loss by theft. So 
 where a man goes on board the boat, with a pack on his back, he does not usually 
 place his goods in the keeping of the ferryman. And yet in each of these cases the 
 ferryman has, in a general sense, possession of both the individuals and their property, 
 and is liable for any loss arising through his default in duty. See Peixotti v. M' Laugh- 
 lin, 1 Strob. 468; Dill v. South Carolina R. 7 Rich. 158. 
 
 ^ Merritt V. Earle, 31 Barb. 38; S. C. 29 N. Y. 115, relates to the liability of a carrier 
 by steamboat on the Hudson, for a span of horses received and carried as freight. 
 
 2 Penn v. Buffalo & Erie R. R. Co., 49 N. T. 204; Cragm v. IST. T. C. R. Co., 51 
 N. Y. 61; Mynard v Syracuse, etc., R. R. Co., 71 N. Y. 180; Bamberg v. South Caro- 
 lina E. E. Co., 9 S. C. 61; McKoy v. K. D. & M. R. R. Co., 44 Iowa, 424. 
 
 8 Steiger v. Erie Railway Co., 5 Hun. (12 S. C. K. Y.), 345; Welsh v. Pittsburg E. 
 10 Ohio St. 65; East Tenn. R. v. Wiittle, 27 Ga. 535. If the cattle are destroyed by a 
 fire set from a lantern used by a servant of the shipper in charge of the cattle the rail- 
 road company is not liable. Hart v. Chicago & Northwestern Ey. Co., 69 Iowa, 485. 
 
 4 Clarke v. Rochester & S. R. Co., 14 N. Y. 570; Gabay v. Lloyd, 3 B. and C. 793; 
 Lawrence v. Aberdeen, 5 B. Aid. 107; Illinois Cent. E. E. Co. v. Bralsford, 13 111. 
 App. 251; Boehl v. Chicago, M. & St. P. R. E. Co., 44 Minn. 333. The common law 
 
3h!S Law op Bailments. 
 
 By analogy, a ferryman who does not assume the exclusive custody of 
 carriages and horses driven on board his boat and held by the driver, 
 should not be held to the full responsibility of common carriers ; and 
 conceding him to stand in the relation of a common carrier, he should 
 not be held liable for damages resulting solely from the uncontrollable 
 instincts of live animals.^ 
 
 § 507. The ferryman must exercise a high degree of care m receiving 
 either passengers or property on board of his boat ; ^ and in landing 
 them.^ He must also protect horses and cattle received on his boat, 
 from loss or injury, by the use of suitable chains and guards.' He must 
 take every reasonable precaution to guard against casualties and dangers 
 incident to the situation ; and he is not allowed to excuse himself from 
 liability, by showing that his boat has been long used, without accident, 
 and without any barrier to prevent cattle from falling off.* He is not 
 allowed to show, in excuse for his negligence, that it is customary with 
 other carriers to conduct their business with equal negligence.' And 
 yet there are cases in which it is admissible to show that the carrier's 
 boat was properly constructed or equipped, and where the testimony 
 must have some reference to the usual mode of constructing or equip- 
 ping like boats." 
 
 On account of his responsibility, the ferryman has the right to regu- 
 late-the mode of receiving and placing goods and chattels on his boat ; ' 
 
 liabilities of carriers attach to the carriers of animals, modified only so far as the cause 
 of damage for which recompense is sought is a consequence of the conduct or propen- 
 sities of the animals undertaken to be carried. Bamberg v. South Carolina E. E. Co., 
 9 S. C. 61; McKoy v. K. T>. & M. E. E. Co., 44 Iowa, 424; Lindsley v. Cliicago, Mil- 
 waukee, etc., E. E. Co., .36 Minn. 539; Mynard v. Syracuse, etc., E. E. Co., 71 N". T. 
 180; Louisville & N. E. E. Co. v. Wynn, S Tenn. 320; Missouri Pac. E. E. Co. v. 
 Cornwall, 70 Texas, 611; Gulf, C. & S. F. E. E. Co. v. Ellison, 70 Texas, 491. 
 
 1 Cragin v. N. Y. Central E. Co., supra, 51 N. T. 61; Smith v. X. H. & N". E. Co., 
 12 Allen, .531. 
 
 2 Pomeroy v. Donaldson, 4 Mo. 33; Hazman v. Hoboken Land & Imp. Co., 2 Daly, 
 130; S. C. 50 N. Y. .56; Miles v. Jones, 1 McCord, 157. 
 
 'White V. Winnisimmet, 7 Cush. 1.1.5; Clark v. Union Ferry Co., 35 !N". Y. 485; 
 Willoughby v. Horrklgc, 12 C. B. 472 ; Walker v. Jackson, 10 JI. and W. 161 ; 5 Hun, 
 523; Simmons v. New Bedford Co., 97 Mass. 361, 308. 
 
 * Lewis V. Smith, 107 Mass. 534; 8 Gray, 547; as to the effect of proof of long use 
 without accident on the question of negligence, see Dougan v. Champlain Trans. Co., 
 56 N. Y. 1; Loftus v. Union Ferry Co., S4 X. Y. 455; Burke v. Witherbee, OS N. Y. 
 562; Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306; Hubbell v. City of Yon- 
 kers, 104 N. Y. 434, 439; Laflin v. Buffalo & Southwestern E. E. Co., 106 N. Y. 136. 
 
 5 Cleveland v. N. J. Steamboat Co., 5 Hun, 523. 
 
 * Dougan v. Champlain Trans. Co., 56 N. Y. 1 ; Crocheron v. North Shore & Staten 
 Island Ferry Co., id. 656; commented on in 5 Hun, 523, 527. 
 
 ' Claypool V. McAllister, 20 111. 504; ante, § 506. 
 
CoMMox Carriers. 389 
 
 and a traveler has a right to rely upon his judgment.^ For the same 
 reason, it rests with the ferryman to determine as to the safety of at- 
 tempting a trip, in a storm or in a freshet ; and it is agreed that he is 
 not liable for losses caused by a storm or a tempest, arising after his 
 boat is under way.^ He is bound to transport goods or chattels during 
 the day and until the close of business hours in the evening, unless he 
 is excused by the weather or the flood, rendering the passage dan- 
 gerous.* 
 
 § 508. Mastei:s- ;/■ Vessels. The master of a vessel also comes withm 
 the description of a common carrier. Although he receives his salary 
 from the owners, it does not effect or annul his common law liability, if 
 he does not keep the goods delivered into his custody safely. This rule 
 was first adjudged in the reign of Charles the Second, on the following 
 grounds : First, because he takc3 a reward and the usage is, that half 
 wages are always paid him before he goes out of the country. Second, 
 that he may make a reserve and caution for himself. Third, that no 
 difference can be assigned between him and a hoyman, common carrier, 
 or innh older. Fourth, that he is rather an oflB.cer than a servant, hav- 
 ing power to impawn the ship, and to sell bojia pertiura. In effect, 
 too, his reward is paid by the merchants upon the same condition as 
 freight is to the owners ; namely, that such freight is earned without 
 which his wages would not be due.*^ 
 
 This decision was made in Mors v. Slue, which was an action brought 
 against the master of a ship for goods delivered into his custody, and 
 stolen from the ship without his fault, by persons pretending themselves 
 to be of&cers with a warrant to search, and the defendant, who had been 
 used to receive the freight and make contracts for transporting goods, 
 was held responsible as master.^ 
 
 § 509. The master is liable to the merchant from whom he receives 
 goods for transportation, precisely to the same extent and in the same 
 form of action as the owner ; but he is liable in a different character and 
 on a different ground.* The owner is liable by reason of his public em- 
 ployment and the profit derived from it for freight. The master is liable 
 
 1 Pomeroy v. Donaldson, 4 Mo. 36. The ferryman must not overload his boat. 
 
 2 Cook V. Gourdin, 2 Nott and McCord, 19. 
 8 Pate V. Henry, 5 Stew, and P. 101. 
 
 * Jeremy's Law of Carriers, 8; the master is liable for the negligent acts of those 
 under his authority; Kennedy v. Eyall, 67 N. T. 379. The liability of the masters of 
 a vessel for its safe management is not affected by the fact that the vessel is chartered 
 by third persons for the particular occasion. Cuddy v. Horn, 46 Mich. 596. See 
 Scarff V. Metcalf, 107 N. T. 211, 217; Kobinsou v. Chittenden, 69 N. T. 525. 
 
 6 Ventr. E. 190, 238; 2 Ld. Eaym. 919; 2 Kent's Comm. 599. 
 
 6 Patten v. Magrath, 1 Eice E. 162. 
 
390 La\y of ByUX^MJiXTS. 
 
 on Ms own contract for the transportation of the goods and by virtue of 
 his taking charge of them for that purpose. The Uability of the owners 
 is implied by law, from tlie nature of their employment, on the ground 
 of public policy ; while that of the master, ■\^•ho is not an owner, and re- 
 ceives no part of the freight, seems to arise rather from his, express un- 
 dertaking; still, on the same ground of policy and in favor of com- 
 merce, he is held personally responsible on his contract, even where 
 the owners are known, which is thus far a departure from the general 
 law of ]3rincipal and agent.^ 
 
 ^Masters of vessels who undertake to carry goods for hire, are liable 
 as common carriers, whether the transportation be from port to port, 
 within the State, or beyond sea, at home or abroad ; and they are an- 
 swerable, as well by the marine law as by the common law of England, 
 for all losses not arising from inevitable accidents, or such as could not 
 be foreseen or prevented.^ In an action of assumpsit on a bill of lading 
 signed by the master, of goods shipped, as from Liverpool to Xew York, 
 he is answerable for any deficiency in the cargo, whether embezzled or 
 otherwise lost.'' And the rule of damages is their value at the place of 
 destination. In his relation to the shipper or consignee of goods, the 
 master is both a principal and an authorized agent of the owners of the 
 vessel entrusted to him ; * but he is not liable on a bill of lading signed 
 by him, Jointli/ Math the owners.^ 
 
 § 510. As between himself and the owners, the master of a vessel is 
 an agent clothed with extensive powers ; authorized to make contracts 
 for supplies,^ for repairs to the ship,' for advances to discharge a claim 
 for salvage,^ and for the transportation of goods.' Absent from home, 
 on a voyage, or at a port of necessity, he has such powers as are neces- 
 sary to enable him to protect the property and interests entrusted to his 
 care. Under the stress of necessity he may borrow money in a foreign 
 port, and hypothecate the vessel for its repayment ; ^^ or sell her, when 
 that is the only means of preserving for the owners or insurers any part 
 
 1 Patten v. Magrath, 1 Rice E. 162; Price v. Hartshorn, 44 Barb. 655. 
 
 2 Eliott V. Kussell, 10 John. K. 1; Schieffelin v. Harvey, 6 John. E. 171. 
 8 Watkinson v. Laughton, 8 John. E. 213. 
 
 " Kemp V. Coughtry, 11 John. E. 107; Bussey v. Donaldson, 4 Dallas E. 296; 1 
 "Wash. (Cir. Co.) E. 142. 
 
 5 Sewall V. Allen, 6 Wend. R. 305; 2 Wend. E. .327. 
 
 * Sager v. Nichols, 1 Daly, 1. See Kenzel v. Kirk, 37 Barb. 113; McCready v. 
 Thorn, 51 IST. T. 454. 
 
 ' Provost V. Patchin, 9 X. Y. 235. 
 
 8 Loback v. Hotchkiss, 17 Abbott Pr. 88. 
 
 9 Ward V. Green, Cowen, 173. 
 
 10 Eeade v. Com. Ins. Co., 3 John. E. 352. 
 
CoMMOK Caeeiees. 391 
 
 of her value ; ^ or acting in good faith, and being unable to consult the 
 owners, he may even sell the cargo, under an absolute or really urgent 
 necessity, to preserve or save its value.^ But he cannot justify a sale, 
 where he has the power at hand to send forward the goods safely by 
 another ship, or is able to repair his own and prosecute the voyage. 
 Being unable to prosecute the voyage, or to send forward the goods, he 
 is bound to act for the best interest of all concerned, including the 
 owners of the cargo and the owners of the vessel. He must do what 
 he can for the preservation of the cargo, and it is his duty towards the 
 owners of the vessel, to earn freight if he can.' 
 
 § 511. Owners of Vessels. The owners of vessels employed in the 
 carrying business on our lakes and rivers, or on the high seas, are com- 
 mon carriers of such goods as they hold themselves out to the community 
 as ready to receive and transport from place to place.* It was at one 
 time held in this State that the owners of a vessel transporting goods 
 on the high seas are not common carriers, within the meaning of the 
 rule, subjecting them to all losses or injuries, which arise from any other 
 cause than the act of God, or the enemies of the country ; and that in 
 an action against them for loss or damage from any other cause, it 
 should be submitted to the jury, upon the evidence, whether they used 
 ordinary care and diligence.^ But this doctrine is in direct conflict with 
 previous decisions of the same court, and it has been since overruled.^ 
 In recent cases the carrier upon the high seas is uniformly regarded as 
 a common carrier, in the same manner, and to the like extent, as the 
 carrier upon land, except in so far as his responsibility is limited by 
 statute.' 
 
 The English decisions are to the same effect, holding the owners of 
 vessels, loading and carrying goods to and from foreign ports, answer- 
 
 1 Chambers v. Grantzon, 7 Bosw. 414; 32 N. T. 685; Hall v. Ocean Ins. Co., 37 
 Fed. Eep'r, 371; McCall v. Sun Mut. Ins. Co., 66 N. T. 505, 516. 
 
 2 Butler V. Murray, 30 N. T. 88. 
 
 'Searle v. Scovell, 4 John. Ch. 418; The Amer. Ins. Co., 4 "Wend. 45; Ogden v. 
 Gen. Mutual Ins. Co. 2Duer, 204; Nelson v. Belmont, 21 IS". T- 36. 
 
 The master's duty to send forward the goods hy another vessel is only imperative 
 ■when he is able to secure a vessel in the same or in a contiguous port, within a reas- 
 onable distance. Saltus v. Ocean Ins. Co., 12 John. 107; Treadwell v. Union Ins. 
 Co., 6 Cowen, 270; Hugg v. Augusta Ins. & B. Co., 7 How. U. S. 595. 
 
 * Sewall V. Allen, 6 Wend. R. 335; 2 Wend. R. 327; The Montana, 129 U. S. 397. 
 
 ^ Ayman v. Astor, 6 Cowen R. 267. 
 
 6Schieffelin v. Harvey, 6 John. 170; Elliott v. Rossell, 10 John. 1;. Kemp v. 
 Coughtry, 11 John. 107; Gould v. Hill, 2 Hill, 623; Dorr v. New Jersey Steam Nav. 
 Co., 4 Sandf. 136; S. C. 11 N. T. 485; Wilcox v. Parmelee, 3 Sandf. 610. 
 
 ' Price V. Powell, 3 Comst. E. 322. See Act of Congress of 1851 ; R. S. of U. S. 
 831, 832. 
 
392 Law of Bailments. 
 
 able as common carriers .^ In short, it is deemed a settled point, that 
 masters and owners of vessels are liable in port, at sea and abroad, to 
 the whole extent of inland carriers, unless exempted by the exceptions 
 in the contract of charter-party, or bill of lading, or by statute. Under 
 the marine law the rule of liability is essentially the same.- 
 
 § 512. The employment of a vessel determines its character as a com- 
 mon carrier. "Where a ship is not put up to freight, but employed by 
 the owner on his own account, and the master receives goods of another 
 person on board as part of his privilege, taking to himself the freight, 
 the owner is not answerable for the conduct of the master in relation 
 to such goods.'* The shipper thus making a private bargam with the 
 master, is not allowed to hold the owner liable thereon ; on the ground 
 that the owner did not actually authorize the contract, nor permit his 
 ship to be advertised or held out for freight.'' 
 
 The master's power to bind the owners is but a branch of the general 
 law of agency.^ When the vessel is what is called a general ship, thai 
 is, one in which the master or owners engage separately with a nuuiLiT 
 of persons unconnected with each other, to convey their respective goods 
 to the place of the ship's destination, the master has authority to receive 
 goods on freight, unless prohibited by the presence of the owner exclu- 
 sively attending to the shipment of the cargo. The owner's presence 
 does not of itself show the master's want of authority.^ 
 
 § 513. Outside of the usual business in which a vessel is employed, 
 the master has no implied authority to bind his principal. Hence, in. 
 order to render the owner of the vessel liable on the contracts of the 
 master, it must be proved that the vessel was in the owner's employ- 
 ment, that the master was appointed by him, and that he acted in 
 making such contracts within the scope of his authority.' A private 
 contract with the master to carry a money parcel, the carriage of which 
 is not within the vessel's ordinary business, does not render the owners 
 responsible.* 
 
 1 Fragano v. Long, 4 Barn. & Cres. R. 219; Elliott v. Rossell, 10 John. R. 7; 2 
 Kent's Comm. 609. 
 
 - Elliott V. Rossell, 10 John. E. 8 ; McCliire v. Hammond, 1 Bay's R. 99 ; Bell v. 
 Reed, 4 Blnn. R. 127; The Montana, 129 U. S. 397 ; The Niagara v. Cordes, 62 U. S. 
 'J ; The Lady Pike, SS I'. ,s. 1. 
 
 8 King V. Lenox, 19 John. R. 2:;.5. ■* Walter v. Brewer, 11 Mass. E. 99. 
 
 6 Lloyd V. Grubert, 10 Jur. X. S. 04!) ; li:] L. J Q. B. 241 ; 12 W. 11. 9.j:i ; 6 B. A- S. 
 100, 129 ; .33 L. J. Q. B. 74. e -^ard v. Green, (S Gowen, 173, 176. 
 
 ' Reynolds v. Tappan, l.'i Mass. R. 370 ; The Schooner Freeman v. Buckingham, 
 18 How. U. S. 1S2. .Ser Armour v. Mich. ('. R. Co., 05 X. Y. IIL 
 
 8 Allen V. Sewall, 2 Wend. 327 ; S. C. 6 Wend. 33"i. In this case a package of bills 
 was delivered to the master of a steamboat at Xew York for Albany ; and it appeared 
 that the carriage of such packages was not a part of the boat's ordinary business, 
 
Common Caeeiees. 393 
 
 § 514. There is no distinction between the owners of ships carrying 
 goods on the high seas and the owners of steamboats and other craft 
 that ply upon our inland waters as carriers for all persons mdifEerently ; 
 the same rule of responsibility attaches to a carrier by water as to a 
 carrier by land.^ The main difference in their liability arises out of the 
 United States statute, and the exceptions so generally inserted in bills 
 of lading exempting the carrier from liability for certain losses caused 
 by the perils or dangers of the sea, rivers or lakes.^ 
 
 The owners of boats transporting goods or merchandise on the 
 canals, for the public generally, are common carriers ; " and they are not 
 ■common carriers, or liable as such, unless they are engaged in the carry- 
 ing business, as a general or public employment.* The owner assumes 
 the character when he enters upon the business ; his liability does not 
 much depend upon his interest in the boats, or upon the means by which 
 the business is carried on. Hoymen and barge owners and wharfingers, 
 ■employed habitually in carrying goods for all persons indiscriminately 
 for hire, are considered common carriers, and subject to the liabilities 
 incident to the business.'' But a wharfinger is a common carrier only 
 w^here he undertakes the duty of carrying goods in lighters to and from 
 vessels in the river ; he is not ordinarily a carrier.^ So a common barge- 
 man is a common carrier, when he is accustomed to carry goods for hire 
 for the public generally, as from London to Milton and other places in 
 Kent.' 
 
 § 515. Our railroads have within quite modern times occupied nearly 
 all the great lines of inland transportation. The corporations construct- 
 ing and operating them, have become carriers on a great scale ; they 
 advertise for freight ; they make known the terms of the carriage ; they 
 provide suitable vehicles, and appoint convenient places for receiving 
 and delivering goods ; and as a legal consequence of these acts, they 
 have become common carriers of merchandise, and are subject to the 
 provisions of the common law applicable to carriers. They hold them- 
 
 ^ Elliott V. Kossell, 10 John. K. 1 ; Price v. Hartshorn, 44 Barb. 655 ; Sears v. 
 M' Arthur, 21 Wend. A. 190 ; Bell v. Reed, 4 Binn. E. 127 ; 6 "Wend. 335 ; Hastings y. 
 Pepper, 11 Pick. II. 81 ; Crosby v. Fitch, 12 Conn. R. 410 ; Kemp v. Coughtry, 11 
 John. K. 107. 
 
 2 The effect of the statute and of special contracts will be considered in another con- 
 nection ; post, §§ 556-560. 
 
 8 Arnold v. Hallenbake, 5 Wend. E. 33 ; Fairchild v. Slocum, 19 Wend. E. 329. 
 
 4 Fish V. Clark, 2 Lansing, 176 ; S. C. 49 N. T. 122. 
 
 s Jeremy's Carriers, 7, 8, 9 ; Ingate v. Christie, 3 C. and K. 61 ; Dale v. Hall, 1 
 Wils. E. 281. 
 
 6 Maying v. Todd, 1 Stark. E. 59 ; Piatt v. Hibhard, 7 Cowen, 497. 
 
 ' Eich V. Kneeland, Cro. Jac. 330. 
 
394 Law of Bailments. 
 
 selves out to the community as ready to carry goods and produce or 
 freight, and they come under the usual description and responsibilities 
 of common carriers for hire.^ 
 
 § 516. Express companies organized as joint-stock companies, or 
 acting as partners and engaged in the business of carrying money 
 parcels and goods over fixed routes, are common carriers. They under- 
 take to transport and deliver goods for hire, though they do not own 
 the roads or cars or boats employed in the transportation. They are 
 more than forwarders ; their contracts bind them for the carriage and 
 delivery of the goods, and they are therefore held responsible as car- 
 riers ; ^ common carriers of that class of packages and goods which they 
 are accustomed to carry, and hold themselves out to the community 
 as ready and willing to receive for transijortation.^ At first they carried 
 packages of coin, bullion, bank notes, commercial paper, and like 
 articles of considerable value, occupying but a small space ; by degrees 
 they have extended the business so as to include goods and things of 
 greater bulk.^ They have also added to it new features, and assumed 
 other duties not attaching to an ordinary common carrier ; such as 
 taking a bill for goods, or a negotiable note, for collection.^ We shall 
 see presently that their liability as carriers is very generally modified 
 by an express contract. 
 
 § 517. An agreement by a private person to carry and deliver goods 
 safely, renders him responsible for tlie goods ; ^ it binds him according 
 to the true intent of the parties. Where the master of a storeship in 
 the king's service takes in the bullion of a private merchant on freight, 
 as from Gibraltar to Woolwich, giving a receipt for the delivery of the 
 same (the act of God and the king's enemies only excepted), he assumes 
 the responsibility of a common carrier and is liable for the loss of the 
 
 1 Camdea & Amboy R. & Transp. Co., 13 Wend. 611 ; Weed v. Saratoga & S. E. 
 Co., 10 Wend. 5,34 ; Thomas v. Boston & Prov. R. Co., 10 Metcalf, 472 ; Burtis v. 
 Buffalo & ;-;tate Line K. Co., 24 N. Y. 269 ; Crouch v. London & Northwestern K. 
 Co. 14 C. B. 2.»; 7 Railw. Cas. 717. 
 
 2 Ante, § 33.5 ; Belger v. Dinsmore, 51 N. T. 166 ; Read v. Spaulding, .5 Bosw. 395 ; 
 Place V. Union Express Co., 2 Hilt. 19 ; Sherman v. Wells, 28 Barb. 403 ; Ilorlam v. 
 Adams Express Co. , 6 Bosw. 23."j ; Merchants' Dispatch Transp. Co. v. Bloch, 86 Tenn. 
 392. 
 
 ^ Sweet V. Barney, 23 N. T. 33.") ; Russell v. Livingston, 19 Barb. 346 ; Sherman t. 
 Wells, 28 Barb. 4(J3. 
 
 * Van Winkle v. Adams Express Co., 3 Robt. 59 ; Belger v. Dinsmore, 51 N. T. 
 166. 
 
 5 Collender v. Dinsmore, 64 Barb. 457 ; S. C. 55 N. Y. 200 ; Palmer v. Holland, 51 
 N. Y. 416. 
 
 « Robinson v. Dunmore, 2 Bos. & Pull. R. 417 ; Powers v. Davenport, 7 Blackf. 
 K. 497. 
 
Common Caeeiees. 395 
 
 bullion, though stolen out of his cabia after the ship's arrival.^ So the 
 commander of a ship of war has been held liable for not safely keeping 
 and delivering bullion, received by him from a merchant to carry home 
 from a foreign port.^ Eegarded as a private carrier, he must excuse 
 his failure to deliver the property at the place of destination; and 
 though the contract be invalid, he must surrender the property on 
 demand, or account for it in some way." He stands in a situation 
 analogous to that of a person who occasionally entertains travelers 
 for pay, like some of the farmers in a new country, and is held liable 
 for good faith and reasonable diligence, and not responsible as an inn- 
 keeper.^ 
 
 § 518. II. DuTT OF THE Cabriee TO Rbceivb. 
 
 It is the duty of a common carrier, on being tendered a reasonable 
 compensation, to receive and carry all goods offered to him for trans- 
 portation, within the line of his business. Having room or the means 
 of transporting the goods, he is bound to receive and carry them over 
 his established route ; he holds himself out to the community as ready 
 and willing to carry goods for all persons, without limitation ; and the 
 law charges him with the duty of fulfilling his engagement with the 
 public. It holds him liable, in an action based on his breach of duty, 
 for a refusal.^ 
 
 It is safe to say that the carrier is ordinarily bound to receive and 
 carry the goods, on being tendered the usual freight paid on like goods 
 over the same route, received and handled ia the same manner. Under 
 ordinary circumstances it is fair to assume that the freight usually paid 
 and received, on like goods, is a reasonable compensation.^ On some 
 
 1 Hatchwell v. Cook, 6 Taunt. R. 577. 
 
 2 Hodgson T. FuUerton, 4 Taunt. E. 787. 
 8 Sheldon v. Eobinson, 7 N. H. 157. 
 
 * Perkins v. Picket, 9 Terger, 480 ; Lyon v. Smitli, 1 Morris, Iowa E. 184. 
 
 = Eiley v. Home, 5 Bing. 217 ; Cole v. Goodwin, 19 Wend, 261 ; N. J. Steam Nav. 
 Co. V. Merchants' Bank, 6 How. IT. S. 344 ; Crouch v. Great Northern E., 14 Com. 
 Bench, 255; 25 Eng. L. & Eq. 287; Merriam v. Hartford E., 20 Conn. 354 ; Jordan 
 V. FaU Eiver E., 5 Cush. 69 ; Morton v. Tibbett, 15 A. & E. 428 ; Galena E. v. Eoe, 
 18 HI. 488 ; New England Express Co. v. Maine Central E. E. Co., 57 Maine, 188. 
 Atchison, etc., E. E. Co. v. Denver, etc., E. E. Co. 110 U. S. 667; Johnson v. Pensacola, 
 etc., E. E. Co., 16 Fea. 623. 
 
 « Galena E. v. Eoe, 18 111. 488 ; Lamar v. New York S. Nav. Co., 16 Ga. 558. The 
 question of the reasonableness of a rate of charge for transportation by a railroad 
 company is a question for judicial investigation. Chicago, M. & St. P. Ey. Co. v. 
 Minnesota, 134 U. S. 418. Although the charter of a railroad company may authorize 
 it " to fix, regulate and receive the tolls and charges by them to be received for the 
 transportation of property," etc., this does not enable the company to charge what it 
 pleases, and abrogate the obligation imposed upon common carriers by the common 
 
396 Law of Bailments. 
 
 routes the rates of freight are as deflnitely fixed as the price of any 
 staple of merchandise. It is not so fixed on other lines of transportation ; 
 and it must also be admitted that the amount ought to depend some- 
 what upon the liability assumed by the carrier ; ^ upon the class or nat- 
 ure of the goods, the mode of handling them, the preparations requisite 
 for their conveyance, and upon the fact that the goods are received only 
 occasionally and in small parcels, or continuously and in large masses.'* 
 The rates of toll paid on merchandise passing through the canal are 
 fixed with some reference to the value of the goods ; measured only by 
 the weight, corn pays a less toll than wheat, and wheat less than flour. 
 There is much more reason for charging freight with some reference to 
 the value of the goods transported.'' 
 
 § 519. Complaints are sometimes made against railroads on the 
 ground of discriminations made in favor of through freight ; and these 
 complaints would appear to be just when a road charges one man more 
 than it does another for the conveyance of the same class of goods over 
 the same distance, after making a due allo-vs-ance for the difference in 
 the exi^ense of loading or unloading the goods. Having ascertained 
 what is a reasonable compensation for a conveyance of the goods, the 
 carrier has no right to exact anything mcire. lie has a right to charge 
 less ; and hence the mere fact of unequal charges being made on hke 
 
 law to carry goods delivered for carriage upon being paid a reasonable compensation, 
 nor does it deprive tlie legislature of the power Ijy any future enactment or general 
 law to regulate the rates of freiglit charged by the company. See Pennsylvania E. E. 
 Co. V. Miller, l;!:i U. S. lo ; Stone v. Farmers' L. & T. Co., 116 U. S. 307, 325; Chicago, 
 M. & St. P. Ey. Co. V. Minnesota, 134 XJ. S. 418 ; Kilmer v. New York Cent. & H. E. 
 E. E. Co., 100 X. T. 305. 
 
 1 In Holford v. Adams, 2 Duer, 471, tlie contract relieved the express company 
 from any liability not arising from fraud or gross negligence, and it was held that 
 this stipulation was to be considered in fixing the amount that should be paid as 
 freight. 
 
 ^ This point has been much discussed in England under the statute requiring uni- 
 form rates. Crouch v. Tlie Great Nortliern Eailw. 2.5 Eng. L. & Eq. 449. In this 
 state a railroad corporation is not allowed to make an unreasonable or unjust discrim- 
 ination between its customers in its freight charges, and the question as to whether 
 such discrimination has been made is ordinarily one of fact. For the circumstances 
 and conditions whi<'h may justify inequality in freight charges, see Eoot v. Long 
 Island E. 1!. Co., 114 X. Y. 300 ; Concord & Portsmouth E. R. v. Forsaith, 59 X. H. 
 122; Atchison, etc., E. E. Co. v. Denver, etc., E. E. Co., 110 U. S. 607. A railroad com- 
 pany is not bound to carry large and small quantities of the same kinds of merchandise 
 between the same points at the same price; Concord it Portsmouth E. E. v. Forsaith, 
 59 X. H. 122. But see Kinsley v. Buffalo, X. Y. & P. E. E. Co., ;;" Fed. Rep'r, 181. 
 
 3 Fitchburg E. E. Co. v. Gage, 12 Gray, 393. In this case it was held not illegal to 
 demand different rates of freight on different kinds of property. 
 
Common Caeeibes. 39T 
 
 freight, carried over the same route, does not prove a violation of legal 
 duty.i 
 
 There has been some recent legislation, in this country and in Eng- 
 land, designed to ascertain what shall be allowed as a fair compensation 
 for the conveyance of property on railroads ; and these statutes fixing 
 maximum rates of freight are valid within the State enacting them.^ 
 In England, some railways are by their charters expressly or im- 
 pliedly limited to reasonable, equal and impartial rates ; " and are not 
 allowed to demand or recover unequal rates of freight.* Not being 
 thus limited, or only limited to reasonable charges, the carrier is not' 
 considered obliged by the common law to charge equal rates to all his 
 customers ; ' indeed, the railway is in some cases expressly permitted 
 to charge higher than the average rates on small parcels, not exceeding 
 in weight five hundred pounds ; and even where the company is re- 
 quired to establish its rates of freight at so much per mile, equally for 
 all persons, they are not prohibited from demanding different rates on 
 different classes of goods." 
 
 It is quite evident that a line of railroads can carry freight a thousand 
 miles at a less rate per mile than it can carry the same freight one 
 hundred miles ; since the cost of loading and unloading is the same in 
 both cases. And though we eliminate this item of difference, by mak- 
 ing a due allowance for it, experts in the business still claim that a line 
 of roads may carry large quantities over long distances at lower rates 
 per ton per mile than smaller quantities over shorter distances, and 
 derive equal profits from the transportation ; because there may be 
 greater economy practiced in the use of labor, steam-power and rolling 
 
 1 Finnie V. Glasgow & Soutliwestem Railw. 2 McQueen's H. of L. 177 ; 34 Eng. L. 
 & Eq. 11 ; Eansome v. Eastern Comities Eailw. 1 C. B. (N. S.) 4S7 ; S. C. 4 id. 135; 
 38 Eng. L, & Eq. 232; Johnson v. Pensacola, etc., E. R. Co., 16 Fla. 023 ; Exparte 
 Benson, 18 S. C. 38; Eagan v. Aiken, 9 Lea (Farm.), 609. 
 
 2 Peilc V. Chicago & Jforthwestern E. Co., 4 Otto, 164 ; Lawrence v. Same, 4 Otto, 
 164; Chicago, Milwaukee & St. Paul R. Co. v. Ackley, 4 Otto, 179 ; Winona & St. 
 Peter E. Co. v. Blake, 4 Otto, 180 ; Stone v. Wisconsin, 4 Otto, 181; Georgia E. 
 E. & B. Co. V. Smith, 128 U. S. 174. As to the extent and manner of exercising 
 legislative regulation of railroads, see Charlotte, etc., E. E. Co. v. Gibbes, 142 U.S. 386. 
 
 8 Boxendale v. London & Southwestern E. Co., 4 H. & C. 130; 35 L. J. Exch. 108 ; 
 1 L. E. Exch. 137 ; 12 Jur. K. S. 274; Parker v. Great Western E. Co., 7 M. & G. 
 253; 7 Scott N. R. 835; 8 Jur. 194; Branley v. South Eastern R. Co., 12 C. B. (N. S.) 
 63; 9 Jur. N. S. 329; 31 L. J. C. P. 286; 6 L. T. N". S. 458. 
 
 4 Pickfordv. Grand Junction E. Co., 19 M. & W. 399. 
 
 6 Boxendale v. Eastern Counties E. Co., 4 C. B. (X. S.) 63; 21 L. J. C. P. 137. 
 To the same effect see Johnson v. Pensacola, etc., E. R. Co., 16 Fea. 623; Exparte. 
 Benson, 18 S. C. 38. 
 
 6 Parker v. Great Western R. Co., 6 El. and Black. 77; 2 Sur. N". S. 325. 
 
398 Law of JiAiLMExxri. 
 
 stock on the long routes.^ A settlement of this question of fact must 
 naturally precede a statute establishing freights at so much a mile, 
 -with merely an allowance for the difference in the expense of handling 
 the goods." 
 
 § r.:2!). Tiailway and canal companies are in England required by 
 statute to all'ord all reasonable facilities for receiving and forwarding 
 and delivering goods and chattels, without making or giving any un- 
 reasonable preference or advantage to or in favor of any person or com- 
 pany, or any kind of traffic ; and without subjecting any person or 
 (■onipany or traffic to any prejudice or disadvantage. For any conduct 
 in contravention of the statute, the injured party may have an injunc- 
 tion restraining the company from any further violation of the act.'' 
 ;t is a violation of the statute for a railway to carry for one person or 
 company the same class of merchandise at lower rates than they charge 
 I ither persons ; ^ it is a discrimination not permitted by the statute, 
 unless there be circumstances which render the cost to the company 
 of carrying for the former less than the cost of carrying for the latter ;^ 
 or unless the goods be differently packed or done up in parcels so as to 
 occasion, in one case more and in the other less, labor and trouble in hand- 
 ling theni.'^ The carrier must deal fairly, he must give the same 
 advantages and facilities to all parties ; and he must not establish rates 
 or conduct his business in such a manner as to make it operate un- 
 equally or ()p[)rcssively towards individuals or towards a particular 
 class of his customers.'' The intent of the statute is to give to all per- 
 sons, in their dealings with a railway carrier, a perfect equality of 
 rights and privileges. 
 
 Independent of the statute the carrier is bound to receive and carry 
 the goods of all persons, indifferently, on the same terms, namely, for a 
 reasonable compensation ; and the rule does not leave him the room or 
 
 1 Ransome v. Eastern Counties E., 28 Eng. L. iSr Eq. 232: S. C. 31 Law Times, T2; 
 the proposition is assumed in Nicholson v. Great AVcstern E. Co., 4 C. B. K. S. 366; 
 4 .Tur. N". S. H87; 2S L. J. C. P. 89. See Eoot v. Long Island E. E. Co., 114 N. T. 
 
 2 Shipper v. Penn. R. Co., 4T Pa. St. E. S:50. 
 
 3 17 and 18 Vict. C. ,31. 
 
 « Harrison v. Corliermouth & W. R. Cc -T C. B. "N". S. 69.3; 4 Jur. K. S. l':;fl; 
 27 L. .T. C. P. 169. 
 
 6 Oxlade v. North Eastern E. Co. 1 C. B. N. S. 454; 3 Jur. N. S. 637. 
 
 " Bo:?enaale v. Eastern Counties E. Co., 4 C. B. N. S. 63. 
 
 " Boxendale v. Great Western E. Co., 4 Jur. N. S. 1241; :, C. B. N. S. 309; Boxen- 
 dale V. Great Western E. Co., 5 C. B. N. S. 336; 28 L. J. C. P. SI; 4 Jur. N. S. 1279; 
 Garten v. Great Western E. Co., .5 C. B. N. S. 069; .5 Jur. N. S. 08.5; 28 L. J. C. P. 
 158. 
 
Common Caeeiers. 399 
 
 the liberty to give one person or one company a preference over otliers.^ 
 I lis refusal to receive and carry to or for an individual or a company, 
 witliout giving some legal excuse, renders him liable in an action for 
 damag€;g — liable to the party tendering the goods, where they are con- 
 signed to a factor or commission merchant for sale.^ The party tender- 
 ing the goods for conveyance should offer to pay a reasonable compensa- 
 tion, specifying a definite sum ; he need not make a technical tender of 
 the money. 
 
 The carrier has a right to know the nature of a package tendered to 
 him for carriage, since a knowledge of its value must naturally dictate 
 the care to be taken of it and the price to be paid for its transportation ; 
 and yet he cannot refuse to receive the package on the ground that the 
 owner declines to disclose its contents.'' 
 
 § 521. The law does not permit a common carrier to constrain a cus- 
 tomer into an agreement to pay unreasonable rates or freight, under peril 
 of having his goods refused. It justifies the customer in paying the 
 amount demanded, under protest, and allows him afterward to recover 
 back the amount so paid exceeding the carrier's reasonable charges.* 
 On the same principle it allows the owner or consignee, at the place of 
 destination, to pay the amount of freight demanded, under protest, and 
 recover back the excess above the amount justly due.'' Moneys paid 
 under a duress of goods, in order to obtam possession of them and pre- 
 vent serious losses, may be recovered back ; and this species of duress 
 
 1 New England Ex. Co. v. Maine Central R. E. Co., 57 Maine, 188. See Audenried 
 v. Pliila. & Reading R. Co., 68 Penn. St. 370, and Messenger v. Penn. R. R. Co., 7 
 Vroom, 407; S. C. 37 N. J. Law, 531; 36 N. J. Law, 407; McDuffee v. Portland & 
 Rochester E. R., 52 N. H. 430; Atwater v. Del., Lack. & West. E. R. Co., 4 East. 
 Rep'r, 186. 
 
 2 Lafarge v. Harris, 13 La. Ann. 553. See the form of the complaint or declaration 
 which was held sufficient iu Pickford v. Grand Junction R., 8 M. & W. 372. 
 
 3 Crouch V. London R., 14 C. B. 255; 25 Eng. L. & Eq. 287. 
 
 * Parker v. Bristol & Exeter R. Co., 6 Eailw. Cas. 776; Garton v. B. & E. R. Co., 
 1 El. B. & S. 112; Peters v. Railroad Co., 42 Ohio St. 275; Lafayette & Indianapolis 
 R. E. Co. V. Pattison, 41 Ind. 312; Mobile & Montgomery Ry. Co. v. Steiner, 61 Ala. 
 559. But where freight has heen carried for a long course of years at schedule 
 price, the shipper making no objection to the reasonableness of the charge, he will be 
 deemed to have assented to the charge as reasonable and to have waived any ob- 
 jection thereto, at least so far as to preclude him from recovering back any portion of 
 the freight so paid. Kilmer v. New York Cent. & H. R. E. R. Co., 100 N. T. 395. 
 The statute authorizes the board of railroad commissioners to take somewhat indefi- 
 nite jurisdiction and remedial procedure in case of unjust discrimination in charges by 
 railroads. Laws of 1890, Ch. GG5, § 160. 
 
 6 Ashmole v. Wainwright, 2 Q. B. 837; 2 G. & D. 217; 6 Jiu-. 729; Harmony v. 
 Bingham, 12 N. T. 99, 109. 
 
400 Law of Bailments. 
 
 is not a whit more oppressive than an unreasonable demand of freight, 
 made wlien the goods are first tendered to the carrier for transporta- 
 tion. 
 
 § 522. Tlie carrier is not bound to depart from liis usual mode of 
 receiving goods ; he has a right to prescribe the manner and the time 
 of receiving them, treating all customers alike. ^ He is not obliged to 
 accept goods of an explosive or dangerous character ; ^ or goods ■which 
 are threatened with destruction by the violence of a mob or by a present 
 and imminent danger from a fire.^ Having room and the means of car- 
 rying the goods, as the rule is usually stated, he is obliged to receive 
 them, and not otherwise — a reasonable qualification of the rule when we 
 consider the usages or modes of business accompanying the establish- 
 ment of the rule itself.^ A railway carrier, being obliged affirmatively 
 to prepare for and provide the means of transportation, is clearly bound 
 to anticipate the usual and ordinary demands of business, and by a proper 
 distribution of its rolling stock at the different stations along the road, 
 fulfill its duty to send forward the goods delivered to it without any 
 imreasonable delay. '^ And it is plain that a railroad company cannot 
 excuse a refusal to receive goods, by alleging its own antecedent neglect 
 to provide the means of sending them forward.^ 
 
 § 523. III. Deliveet to the Caeeiee. 
 
 In order to charge the carrier with goods, there must be a delivery 
 of them into his custody ; a delivery to the carrier personally, to his 
 agent or servant, or to some one acting in his behalf and authorized to 
 receive them.' It is not enough that the property be delivered upon 
 the carrier's premises, in the place appointed by him for receiving 
 
 1 Garton v. Bristol and Exeter R. Co., 5 C. B. N. S. 669; 5 Jur. N. S. 685; 28 L. J. 
 C. P. 158. 
 
 - See post, § 5:51. 
 
 3 Pittsburg, Cincinnati, etc., Ey. Co. v. HoUowell, 65 Ind. 188; Edwards v. Sher- 
 ratt, 1 East, 604; boatmen prevailed on to stop and receive a cargo of corn threatened, 
 and afterwards destroyed by a mob. See situation presented in Miller v. Steam Nav. 
 Co., 10 N. T. 4,31; S. C. 13 Barb. .361. In Pittsburg, Fort Wayne & C. J{. R. Co. v. 
 Hazen, 84 111. 30; in Giesner v. Lake Shore & M. S. Ey. Co., 102 X. Y. 536; and in 
 Gulf, C. & S. F. E. E. Co. V. Levi, "76 Texas, 337. 
 
 * Jackson v. Eogers, 2 Show. E. 327; Lovett v. Hobbs, id. 127; Batson v. Donovan, 
 4 Barn. & Aid. 32. 
 
 5 Ballentine v. Western Mo. Eailw. 40 JIo. 491. The road is not bound to provide 
 against an unusual and extraordinary pressure to send forwarl rraln or uifrchandise. 
 Wibert v. N. Y. & Erie E. Co., 12 N. T. 245; Galena and (.Uicago Union R. E. Co. 
 v. Rae, 18 111. 488. 
 
 8 Condict v. Grand Trunk E. Co., 54 N. Y. 500. 
 
 ' Selway v. HoUoway, 1 Ld. Eaym. 46. 
 
Common Caeeiees. 401 
 
 goods ; it must be accepted and received,^ or left with notice in the 
 usual manner.^ 
 
 The circumstances are to be considered in determining what amounts 
 to a delivery. Parcels of light weight are delivered in the manner sug- 
 gested by the nature of the property ; and the same is true of heavy 
 and cumbersome articles.' The delivery of a money package to an ex- 
 press company should be made at the office, to an agent authorized, or 
 at least accustomed to receive such packages.* The manner of the de- 
 livery is not so important when the goods are received by the carrier's 
 agent to receive ; it becomes more important when the goods are left at 
 the proper place, with persons who are not directly authorized and j'et 
 are permitted by the carrier to receive them.^ 
 
 § 524. The mode or custom of delivering goods to a ship carrier, in 
 large quantities, goes far to insure a legal delivery. E. g., the goods are 
 carried to the vessel by a carman in successive loads and delivered to 
 the master or his agent on board, who gives a receipt for each parcel 
 when received ; and these receipts are afterwards returned to the mas- 
 ter, when he delivers the bill of lading to the shipper." The same cus- 
 tom prevails in our larger towns when goods are delivered to a railroad 
 carrier, or to one of our express companies : a receipt is taken for the pack- 
 age or parcel or box of goods.' On a sale of goods, where the purchaser 
 directs them to be sent to him by a specified carrier, the seller making a 
 delivery should take a receipt for them, or have them booked where that 
 is usual ; he should deliver them in such a manner as to charge the car- 
 
 1 Grosvenor v. The N. T. C. E. E. Co., 39 N. Y. 34; Blanohard v. Isaacs, 3 Barb. 
 388; Nelson v. Hudson Eiver E. E. Co., 48 N. T. 498. 
 
 2 Packard v. Getman, 6 Cowen, 757; }{erriam v. Hartford & N. H. Eailw., 20 
 Conn. 354. A carrier is responsible as such only where goods are delivered to and 
 accepted by him for immediate transportation in the usual course of business. If 
 delivered awaiting further orders from the shipper before carriage, he is liable only 
 as a warehouseman. O'Neill v. New York Cent. & H. E. E. E. Co., 60 N. Y. 138; 
 Eogers v. Wheeler, 52 N. Y. 262. Delivery to a, carrier for transportation involves 
 exclusive possession in the carrier, and a surrender of custody and control for the 
 time being by the shipper. Wilson v. Atlantic, etc., E. E. Co., 82 6a. 386. 
 
 3 Slade V. Hudson Eiver E. E. Co. , 16 Barb. 383 ; carpenter's tools left at freight depot 
 without notice. See Merritt v. Old Colony and Newport E. Co., 11 Allen, 80, relating 
 to the delivery of an engine. 
 
 4 Cronkite v. Wells, 32 N. Y. 247. 
 
 5 Burrell v. North, 2 C. and Kirwan, 680; Langworthy v. N. Y. and Harlem E. E. 
 Co., 2 E. D. Smith, 195; 32 N. Y. 247; 12 M. and W. 766. 
 
 8 Brower v. Peabody, 13 N. Y. 121. The facts presented in this case show the cus- 
 tom or mode of business in New York; see Whitlock v. Hay, 58 N. Y. 284, as to the 
 use of receipts for grain on storage. 
 
 7 McCotter v. Hooker, 8 N. Y. 497. 
 ' 26 
 
40:2 Law op Bailments. 
 
 rier ; otherwise the title will not pass on the delivery ; ' he should 
 make such a delivery to the carrier as will give the purchaser a remedy 
 against him for his failure to carry safely and deliver the goods at the 
 place of destination.^ 
 
 § 525. It is competent for a carrier to adopt a practice or usage of 
 receiving goods at a station or at a wliarf without special notice ; and 
 where he does so and by his conduct induces his customers to under- 
 stand that he will consider a deposit of goods in his freight house or on 
 his wharf or platform as a delivery of them, the deposit must have 
 effect according to the understanding thus established.^ We give effect 
 to a similar usage when it operates in his favor, at the end of his trans- 
 portation of the goods, and there is no reason why it should not be 
 held valid when it operates against him ;^ valid from the time when 
 according to the I'egular routine of business the goods would come into 
 his custody. On the same ground the carrier must be held chargeable 
 with goods wiien they are delivered at the xDlace appointed by him, or 
 placed in a car under his control with his assent, or when sent to a 
 particular office under his instructions,'' or in pursuance of an estab- 
 lished usage.* 
 
 § 5ii6. The goods or package must be delivered to the carrier, to be 
 carried by him ; otherwise he cannot be charged as a carrier. If a pas- 
 senger on board deliver a sealed letter containing bank notes to the 
 clerk of a steamboat for safe keeping, the contract is one of deposit 
 between them, and the depositary is only responsible for ordinary care." 
 The goods must also be placed in the custody of the carrier ; in order 
 to charge him, he must be entrusted with the goods ; for where the 
 owner sends a guardian with them, or where the goods are placed in 
 the carrier's conveyance under a contract that the owner shall go along 
 with them and take care of them, the carrier is not answerable as such 
 for their safety.' He is not answerable for a watch or for money or 
 for parcels or for wearing apparel which a passenger retains in his own 
 custody.^ But where the carrier actually assumes custody of goods, he 
 
 1 People V. Haynes, 14 Wend. 54(5; Cross v. O'Donnell, 44 N. T. 661. 
 
 2 Clark V. Hutchins, 14 East, 47"); Buckman v. Levi, 3 Campb. 414. 
 SjMerriamv. Hartford & N. H. E. Co., 20 Conn. 3.50, directly in point; and the 
 
 J. Eussell Manuf. (Uk v. X. H. Steamboat Co., 52 N. T. 657, indirectly; S. C. 50 
 N. T. 121. 
 
 * Colepepper v. Good, 5 Carr. and Payne R. 380; Illinois, etc., \\. E. Co. v. Smyser, 
 38 111. .",54. 
 
 6 Sims V. Chaplin, 5 Adolph. & Ellis, (134. 
 
 s Wilcox and Fearn v. Steamboat Phila., "J Louis E. 80. 
 
 '' East India Co. v. Pullen, 1 Strange, 690; Brinde v. Dale, S Carr. and Payno, L''i7. 
 
 8 Tower V. Utica and S. R. Co., 7 Hill (>r. T.), 47; Miles v. Cottle, 6 Bing. 743; 
 
Common Caeeiees. 403 
 
 is answerable for them notwithstanding tlie owner accompanies them 
 or sends a servant to keep an eye on them ; ^ for the same reason that 
 an innkeeper is liable, though the owner with his consent takes his 
 goods with him into his own room. 
 
 § 527. The delivery to a carrier is generally a matter of fact to be 
 established by evidence. Proof that goods and merchandise were deliv- 
 ered according to the usage on the wharf, to the mate of the ship by 
 which they were to be carried, is sufficient to charge the carrier. The 
 act of loivling a vessel is a part of the carrier's duty, and where the 
 usage is for him to receive and receipt the goods on the quay or wharf, 
 he is responsible for them from the time he receipts them. The delivery 
 to the authorized agent is a delivery to the carrier, and after that he 
 must answer for them though they are lost from the wharf before they 
 are shipped.^ Having accepted goods or chattels, the carrier cannot 
 afterwards set it up as a defense, that he was not bound to receive them 
 at the time, or at the place, or in the condition m which they were of- 
 fered ; as where the carrier received a greyhound, not properly secured ; ^ 
 or where he received a package at the post-office where his coach was 
 standing ; * or where he received goods after the time prescribed, to go 
 forward on the same evening, and yet in season so that they could be 
 sent forward.^ 
 
 § 528. The carrier's liability attaches from the time he receives goods 
 for carriage. Receiving them on Thursday, his conveyance leaving on 
 Saturday, he is liable for a loss of the goods by fire, occurring between 
 the two days.^ His responsibility begins from the delivery to him, 
 where the goods are to be carried forward without further orders.' The 
 
 Wlialley v. Wray, 3 Esp. 14; Gibbon v. Poynton, 4 Burr. 2297; Abbott v. Bradstreet, 
 55 Maine, 530; money stolen from a passenger's pocket; Phelps v. London and N". W. 
 E. Co., 19 C. B. (N. S.) 321; Clark v. Burns, 118 Mass. 275; Weeks v. N. T., N. H. 
 & H. E. E. Co., 9 Hun, 669. A carrier does not undertake to carry and safely deliver 
 money carried in the passenger's clothing during the day and placed under his piUow 
 in the sleeping-car at night. Lewis v. K". T. Sleeping Car Co., 143 Mass. 267; Car- 
 penter v. X. Y., N. H. & H. E. E. Co., 124 IST. T. 53. 
 
 1 Eobiuson v. Dunmore, 2 Bos. and Pull. 417. 
 
 2 Cobban v. Donne, 5 Esp. E. 41; Fraganno v. Long, 4 Barn. & Cres. 219; Anjore 
 V. Deagle, 3 Har. & John. E. 206; Fitchburg Eailroad y. Hanna, 6 Gray, 539; Ean- 
 dleson v. Murray, 8 A. and E. 109. ^ Stuart v. Crowley, 2 Stark. E. 287. 
 
 * Phillips T. Earle, 8 Pick. E. 182; Kreuder v. Woolcott, 1 Hilton, 22.3. 
 
 5 Pickford v. Grand Junction E. Co., 12 Mees. & W. 766; Hickox v. ITaugatuck 
 E. 31 Conn. 281. 
 
 * Forward v. Pittard, 1 Term E. 27; Cobban v. Donne, 5 Esp. 41. 
 
 '' Hyde v. Trent & Mersey Nav. Co., 5 Term E. 389; Blossom v. Griffin, 3 Kernan 
 (13 K. T.), 569, 576; Coyle v. Western E. Corporation, 47 Barb. 152, 154; Ladue v. 
 Griffith, 25 N. T. 364; Grand Tower, etc., Co. v. Ullman, 89 111. 244. 
 
404 Law of Bailments. 
 
 rule is the same where he keeps an inn or a warehouse, and receives 
 goods into them for conYeyance over his line as a carrier ; and where he 
 receives goods into his warehouse from another carrier, addressed to a 
 point beyond the termination of his line.^ He is liable as a carrier unless 
 he receives the goods into his warehouse or elevator, as the case may be, 
 to await further orders.^ Receiving goods into his custody for storage 
 until he is ordered to send them forward, he is not answerable as a 
 carrier until his duty as a carrier begins.^ Having carried the goods to 
 the end of his route, he becomes a forwarder of such goods as have a 
 more distant destination ; as where a carrier on the Hudson river receives 
 goods at Xew York to be transported to Troy, from whence they are to 
 go north by the canal to Granville ; at Troy his duty as a carrier ceases 
 on his delivery of the goods to the next carrier, pursuant to his instruc- 
 tions.* 
 
 § 529. The delivery to the carrier must be honestly made. He must 
 be fairly entrusted with the property. For illustration : a passenger 
 came on board the steamboat Constellation at New York, delivering to 
 the master of the boat a trunk as his baggage, in which was deposited 
 over eleven thousand dollars in bank notes ; the passenger spoke of it 
 to the master as a trunk of importance, without mentioning what was 
 in it, or paying anything for its carriage separate from his fare to Xew- 
 burgh. The bills Avere received by the passenger from the president of 
 the Bank of America, in seven sealed packages, with advice that he had 
 better deliver them to the captain immediately on going aboard, which 
 he considered as a direction to him, and placed the trunk in the office 
 of the boat behind the door, as directed by a young man in it, who 
 appeared to be doing business there ; then went ashore a few minutes 
 to buy some oranges, when on his return the trunk had disappeared; 
 and the plaintiff, the Orange County Bank, the owner of the money, 
 brought an action against the proprietors of the boat, seeking to charge 
 them as common carriers ; and it was held that this was not such a 
 delivery of the packages of the bills as to render the carrier responsible 
 
 1 Rogers v. Wheeler, 6 Lans. 420; 52 X. Y. 262. 
 
 " Barren v. Eldridge, 100 Mass. 4.0.3. Ante, §§ :13.5, .336. 
 
 swiiite V. Humphrey, 11 Adolph. & Ellis It. 43; Blossom %-. Griffin, 13 N. Y. 
 .569; O'Neil v. N. Y. Cent. & H. R. 1!. R. Co., 00 X. Y. 138; Rogers v. Wheeler, 52 
 N. Y. 2(;2. 
 
 * Ackley v. Kellogg, 8 Cowen, 223; Root v. Great Western R. R. Co., 45 N. Y. 524; 
 Goold V. Chapin, 20 N. Y. 259; St. Louis Ins. Co. v. St. Louis R. R. Co., 104 U. S. 
 146; Mich. Cent. I!. E. Co. v. Myrick, lOt U. S. 102; Hunter v. Southern P. E. R. 
 Co., 76 Texas, 195; Crouch v. Louisville & N. R. R. Co., 42 Mo. App. 24R: Piedmont 
 Manuf . Co. v. Columbia & Greenville E. R. Co., 19 S. C. 358; Knight v. Providence 
 & Worcester R. R. Co., 13 R. I. 572. 
 
Common Caeriees. 405 
 
 for them, on the ground that when a carrier is to be made liable for 
 bank bills, not made up in a package pointing to its contents, common 
 justice requires that he should be informed of the nature of his charge, 
 so that he may take the necessary precautions for its safety and for his 
 own protection.' 
 
 Under this rule the carrier is not held liable for money packed and 
 silently delivered with baggage, exceeding the amount required to 
 meet reasonable traveling expenses.^ It is a breach of good faith to 
 conceal in one's goods or baggage large quantities of money carried 
 merely for transportation, where the owner's intention is to charge the 
 carrier with its safe conveyance ; and though there be no fraudulent 
 intent in the concealment, it is an act of carelessness ; it tends to throw 
 the carrier off his guard, and it prevents him from taking that degree 
 of care of the property which a knowledge of its value would 
 insure.* 
 
 § 530. In delivering goods to a carrier, it is to be assumed that they 
 are of a kind and value indicated by the manner in which they are 
 packed or done up ; and where they are disguised in packages, making 
 them to appear of less value than they really are, and the carrier is thus 
 induced to treat them as of little value, he is not chargeable with tbe 
 goods.' He is not chargeable with silks and furs, packed and delivered 
 in bedding and carried at a lower rate.* He does not make any contract 
 covering the goods thus withdrawn from his observation ; and he does 
 not, where a passenger packs merchandise in his baggage, and the same 
 is carried as baggage, the carrier having no knowledge of its existence 
 until the event brings it to his notice.^ In England, as we shall see, the 
 
 1 Orange Co. Bank v. Brown, 9 "Wend. 85; Merrill v. Grinnell, 30 N. Y. 594, 621; 
 Dexter v. Syracuse, B. & N. T. E. E. Co., 42 N. T. 326; Whitmore v. Steamboat 
 Caroline, 20 Mo. 513; Dimlap v. International Steamboat Co., 98 Mass. 376; John- 
 son V. Stone, 11 Humph.. 419; Doyle v. Kisor, 6 Ind. 242. 
 
 2 Chicago & Aurora E. E. Co. v. Thompson, 19 111. 578, the claim was to recover 
 •'?750 alleged to have been in a box of goods that was lost. As to sums of money 
 packed with baggage and unnecessarily large for traveling expenses, see Davis v. 
 Michigan C. Eailroad, 22 111. 278; Hickox v. Naugatuck Eailroad, 31 Conn. 281; as 
 to sums allowed, see Merrill v. Grinnell, 30 N. T. 594; Jordan v. Fall Eiver E. Co., 
 5 Cush. 69. The amount which is reasonable, considering the journey and the cir- 
 cumstances, may be recovered. Carpenter v. K. Y., N. H. & H. E. E. Co., 124 N^. Y. 
 53; Fairfax v. N. Y. Cent. & H. E. E. E. Co., 78 N. Y. 167. 
 
 2 Warner v. Western Transp. Co., 5 Eobt. 490, 495. 
 
 1 Chicago & Alton E. Co. v. Shea, 66 111. 471 ; Savannah F. & W. E. E. Co. v. Col- 
 lins, 77 6a. 376. 
 
 5 Cahill V. London & N. W. K. Co., 13 C. B. N. S. 818; Belfast & B. E. Co. v. 
 Xeyes, 9 H. L. Cas. 556; Haines v. Chicago, etc., E. E., 29 Minn. 160; Hamburg- 
 American Packet Co. v. Gattman, 127 HI. 598; Gumey v. Grand Trunk E. E. Co., 37 
 
406 Law of Bailments. 
 
 carrier is by statute exempted from liability for loss or injury by his 
 servant's negligence to any of the specified articles, delivered to him 
 for carriage and being above the value of ten pounds, unless its value 
 is declared and an increased charge paid thereon.^ The intent of the 
 statute is to excuse the carrier for losses arising through the negli- 
 gence of his servants, in respect to articles of great value in small 
 compass, wlien delivered without any statement of their value.'- 
 And the statute takes effect without any proof showing fraud or bad 
 faith on the part of the owner of the package or parcel.' Independ- 
 ent of the statute the carrier is relieved from liability only where 
 the owner practices some fraud or concealment inducing him to 
 accept the goods as being of less value than they are, or where the 
 owner by his negligence induces him to omit taking proper care of 
 them.* 
 
 § 531. Dcnigeriius Goods. It is the duty of the owner, delivering dan- 
 gerous goods or explosive compounds for transportation, to give the 
 carrier notice of the dangerous nature of the article or package ; and 
 he is liable for the omission, where the article is delivered by his agent. ^ 
 Such goods require more caution in their conveyance than ordinary 
 merchandise, and as they cannot be safely carried without using ex- 
 
 State Eep'r, 15.j; Metz v. California S. E. Co., 85 Cal. 329; Blumantle v. Fitchburg 
 E. K. Co., 127 Mass. -322. To the extent tliat articles carried by a passenger for his 
 personal use while traveling exceed in quantity and value such as are ordinarily or 
 usually carried by passengers of like station and pursuing like journeys, they are not 
 baggage for which the carrier by general law is responsible as insurer. New York 
 Cent. & H. R. E. E. Co. v. Fraloff, 100 U. S. 24. 
 
 1 11 Geo. IV., and 1 Will. IV., Ch. 68, amended by 28 and 29 Vict. Ch. 94, cited as 
 The Carrier's Act, Amendment Act, 186.5. 
 
 2 Pianciani v. London & Southw. Co., 18 C. B. 220; Hearn v. London tt Southw. 
 Co., 10 Exch. 79;l; .3 C. L. E. .597; Hollister v. Xowlen, 19 Wend. 234, 249. 
 
 s Boys V. Pink, 8 Car. and P. 361. 
 
 * Gorham Manuf. Co. v. Fargo, 3 Jones and Spencer (35 K. T. Superior Ct. E.), 434. 
 In this case a box of coin weighing about twenty pounds, eight inches long by five or 
 six inches high and wide, wrapped in brown paper and sealed, was delivered to an 
 express company, nothing being said to mislead. See 46 X. T. 266 ; 3 E. D. Smith, 
 571 ; Southern Ex. Co. -v . Everett, 57 Ga. 688. 
 
 ^ Barney v. Burstenbinder, 7 Lansing, 210; 64 Barb. 212; Jeffrey v. Bigelow, 1.3 
 Wend. 518; Pierce v. Windsor, 2 Sprague, 35; Thomas v. Winchester, 6 N. Y. 397. 
 In this State it is provided by statute that "any person who shall knowingly present, 
 attempt to present, or cause to be presented or offered for shipment to any railroad, 
 steamboat, steamship, express or other company engaged as common carrier of pas- 
 sengers or freight, dynamite, nitro-glycerine, powder or other explosives, dangerous 
 to life or limb, without revealing the true nature of said explosive or substance so 
 offered or attempted to be offered to the company or carrier to which it shall be pre- 
 sented, shall be guilty of a felony, and upon conviction shall be fined in any sum not 
 
Common Caukibes. 407 
 
 treme care, the owner is bound in law to give tlie carrier notice of their 
 dangerous character. Being notified of their dangerous nature, the 
 carrier may either refuse to take the goods, or receive them and make 
 suitable provisions against the danger.^ The judges were at first in- 
 clined to place the shipper's liability on the ground of an implied con- 
 tract, that he would not deliver, to be carried on the trip, packages of a 
 dangerous nature without giving notice of the fact ; in other and later 
 cases the liability is placed on the ground of duty, without appealing 
 to the theory of contract. The article being dangerous and packed in 
 such a manner as not to be distinguishable from harmless packages, 
 the owner is bound to guard it and handle it as a dangerous agent ; 
 and where the article is new and dangerous, it is incumbent upon him 
 to warn the carrier to whom it is delivered, and all persons concerned 
 in handling it, against the danger.^ Failing in this duty, he is liable 
 to the carrier and to the carrier's servant for any injury resulting from 
 his handling it without warning ; ^ and to any person injured, however 
 remote from the place where it was delivered, in consequence of hand- 
 ling it in ignorance of its true nature.* 
 
 The party delivering the goods, being ignorant of their dangerous 
 nature, is not liable ; ^ and the carrier is not, where he receives them 
 without knowledge, as ordinary goods, and under circumstances free 
 from suspicion.^ 
 
 IV. Responsibility of Caeeiees. 
 
 § 532. By the general custom, or as it is termed in England the 
 custom of the realm, which is the foundation of the common law on the 
 subject, the common carrier entrusted with goods for carriage, is with 
 two exceptions responsible for all losses. His responsibility is estab- 
 lished with a view to public policy, to the reward which he receives, to 
 
 exceeding one thousand dollars, or imprisoned in a state prison for not less than one 
 or more than five years, or be subject to both such fine and imprisonment. Penal 
 Code, § 389. 
 
 1 Bross V. Maitland, 6 Ellis and Black. 470; Williams V. East I. Co., 3 East, 192; 
 Boston & A. E. R. v. Shanley, 107 Mass. 568. 
 
 2 Boston & Albany Kailroad v. Shanley, supra; and Barney v. Burstenblnder, 64 
 Barb. 212; 7 Lansing, 210. 
 
 ' Farrant v. Barnes, 11 Com, Bench N. S. 553. 
 
 ^ In Barney v. Burstenblnder, the nitro-glycerine was delivered in New York and 
 carried to San Francisco, and there being handled in a warehouse, without knowing 
 what it was, an explosion followed, doing damage to the plaintiff's property. See 
 Thomas v. Winchester, supra. 
 
 5 Hearne v. Garton, 2 El. El. 66, decided under the English statute, 
 
 6 Parrott v. Wells, 15 Wallace, 524. 
 
408 Law or Bailments. 
 
 his character as an insurer, and to the terms of liis contract, express or 
 implied.^ 
 
 Under the rule appUcable to other bailees for hire, the carrier would 
 only be responsible for ordinary neglect ; and it seems to have been held 
 in the reign of Henry the Eighth that a common carrier was chargeable 
 for a loss by robbery, only when he had traveled by dangerous ways or 
 driven by night ; ^ while in the more commercial reign of Elizabeth, it was 
 resolved upon the same broad principle of policy and convenience, appli- 
 cable to innholders, that if a common carrier be robbed of the goods 
 delivered to him, he shall answer for the value of them. The rule was 
 afterwards rendered sthl more stringent, until it became settled that 
 the carrier must answer for all losses, not caused by the act of God or 
 the king's enemies. These exceptions are in truth part of the rule 
 itself.'' 
 
 § 533. The conceded severity of the common law, in prescribing the 
 liability of a common carrier, has been often and long defended by the 
 wisest and ablest judges.* Chief-Justice Best points out the general 
 reason of public convenience by which it is maintained in recent times, 
 in these words : " When goods are delivered to a carrier, they are usually 
 no longer under the eye of the owner ; he seldom follows or sends any 
 servants with them to the place of their destination. If they should be 
 lost or injured by the gross negligence of the carrier or his servants, or 
 stolen by them, or by thieves in collusion with them, the owner would 
 be unable to prove either of these causes of loss. His witnesses must 
 be the carrier's servants ; and they knowing that they could not be con- 
 tradicted, would excuse their masters and themselves. To give due 
 security to property, the law has added to that responsibility of a car- 
 rier which immediately arises out of his contract to carry for a reward, 
 namely, that of taking all reasonable care of it, the responsibility of an 
 uasurer. From his liability as an insurer, the carrier is only allowed to 
 be relieved by two things, both so well known to all the country, when 
 they happen, that no person would be so rash as to attempt to prove 
 that they had happened, when they had not ; namely the act of God, 
 and the king's enemies." ^ 
 
 1 Coggs V. Bernard, 2 Ld. Raym. 919; Dale v. Hall, 1 TVils. E. ISl; Jeremy on Law 
 of Carriers, 31-38; Packard v. Taylor, o.j Ark. 402; Hooper v. Wells, Fargo i Co., 
 27 Cal. 11 ; ante, § 462. 2 xoy..>s' Maxims, Ch. 43. 
 
 8 Mors V. Slue, 1 Raym. 220; 1 Vent. 190, 238; Colt v. >['Mechen, G John. E. 160; 
 Elliot V. Rossell, 10 .John. I!. 1; Myiiard v. Syracuse, fh'., R. R. Co., 71 X. T. 180; 
 The Maggie Hammond, 9 Wall. 4:i5; Kohannan v. Hammond, 42 Cal. 227. 
 
 1 Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 909, ronsidi-rs it a politic establish- 
 ment, contrived by the policy of the law for the general safrty. 
 
 ^ Eiley v. Home, 5 Bing. 217. As will be noticed hereafter, the carrier does not 
 
Common Cakkiees. 409 
 
 § 534. The Code of Louisiana, adopting the rule of the civil law, 
 holds the common carrier to the same liability as it does an innkeeper ; 
 that is to say, liable for goods stolen or damaged, by his servants or 
 agents or by strangers ; but not liable for goods stolen by force and 
 arms, or by exterior breaking open of doors or by any other extraordi- 
 nary violence. It holds him liable for the loss or damage of things en- 
 trusted to his care, unless he can prove that such loss or damage was 
 occasioned by accidental and uncontrollable events.^ It unites the rule 
 of liability with a rule of evidence ; ^ and it is noteworthy that the com- 
 mon law rule was " contrived by the policy of the law " to protect the 
 owner against the difficulty of proving the cause of a loss, happening 
 to his goods while in the hands of the carrier and his servants ; ' and 
 that this protection is rendered i^erfect by holding the carrier responsi- 
 ble for the goods, unless he proves a loss of them by causes for which 
 he is not answerable.* 
 
 insure against loss or damage to goods arising from the conduct of tlie owner or 
 from the nature and inherent character of the property carried. See McGraw v. 
 Baltimore & Ohio E. E. Co., 18 W. Va. 361; Mynard v. Syracuse, etc., E. E. Co., 71 
 N. Y. 180; American Express Co. v. Smith, 33 Ohio St. 511. See post §§ 597-599. 
 
 ^ Code of Louisiana, Arts. 2722-2726, and 2935-2940. See as to common law liabil- 
 ity of innkeepers, ante, §§ 462, 463. 
 
 2 Hunt V. Morris, 6 Martin, 673, 682. This action was for goods lost by tire while 
 on board of the carrier's boat. "The law casts the burden of proof on the carrier. 
 Where the loss or damage arises from occurrences entirely beyond the control of the 
 carrier, such as an attack by the public enemy, a storm or tempest, it is enough for 
 him to prove the fact, and he who claims compensation for the loss is to prove the 
 fault or misconduct of the carrier, in order to recover against him. But in those cases 
 which are not readily supposed to happen without negligence, such as a loss by 
 robbery, fire, etc., the carrier is bound to show that they happened without any fault 
 or negligence on his part, which, being a negative proposition, can only be established 
 by evidence of the ordinary care and attention usually given by diligent men on like 
 occasions. This rule gives to the owner, the plaintiff, the advantage of implied or 
 presumptive evidence of negligence, on the part of the masters and owners, which they 
 are bound to disprove by showing due diligence." And see Heyle v. Inman Steamship 
 Co., 14 Hun, 564. 
 
 Brousseau v. Ship Hudson, 11 La. Ann. E. 427, action for damages to bales of 
 carpeting. The carrier must exculpate himself or bear the loss. The law presumes 
 against a carrier in every case, except such as could not happen by the intervention 
 of human means. He is liable for a loss or damage of goods, unless he shows that the 
 same was occasioned by "accidental and uncontrollable events." The rule is not 
 put disjunctively, so as to excuse him for a loss or damage occasioned by an acci- 
 dental event. 
 
 ^Roberts v. Turner, 12 John. E. 232. "The carrier is held responsible as an 
 insurer of the goods, to prevent combinations, chicanery and fraud. 
 
 * Alden v. Pearson, 3 Gray, 432; Heyle v. Inman Steamship Co., 14 Hun. 564; 
 Michaels v. N. T. Cent. E. E. Co., 30 N. T. 304; Bead v. Spaulding, 30 N". Y. 630; 
 Eeid V. St. Louis, etc., R. R. Co., 60 Mo. 199. 
 
410 Law of Bailments. 
 
 § 535. There does not appear to be any tendency in our modern 
 decisions to relax tlie rule of liability imposed upon the carrier by the 
 common law.^ The rule carries with it a compensation ; in the words 
 of Chief-Justice Beoxson : ^ " There is less of hardship in the case of a 
 carrier, than has sometimes been supposed ; for while the law holds 
 him to an extraordinary degree of diligence, and treats him as an insurer 
 of the property, it allows him, like other insurers, to demand a pre- 
 mium proportioned to the hazards of his employment. The rule is 
 founded upon a great principle of public policy ; it has been approved 
 by many generations of wise men ; and if the courts were now at 
 liberty to make instead of declaring the law, it may well be questioned 
 whether they could devise a system which, on the whole, would oper- 
 ate more beneficially. I feel the more confident m this remark from 
 the fact that 'in Great Britain, after the courts had been perplexed for 
 thirty years with various modifications of the law in relation to car- 
 riers, and when they had wandered too far to retrace their steps, the 
 legislature finally interfered, and in all its most important features 
 restored the salutary rule of the common law." " 
 
 § 536. Without departing from the great rule of liability asserted 
 from an early day, it is quite true that the carrying business has been 
 in recent years regulated, in some degree, in England by statute;' 
 and in this country by statute and the general use of special contracts. 
 It may also be true that the progress of science tends to render the 
 phrase, act of God, less descrii^tive of the causes of loss for which the 
 carrier is not responsible, than it was in the seventeenth and eighteenth 
 centuries, and that there is a silent drift of opinion working towards 
 some modification of the rule itself. There is more study now of the 
 civil law, in England and in this country, and on this subject apparently 
 more respect paid than formerly to that system or body of laws ; ^ and 
 
 ' Cole V. Goodwin, 10 Wend. 'l'A\ Harrington v. JlcShane, 13 Watts, 443; Eagle v. 
 Wliite, 6 Whar. .517; Thomas v. Boston R. 10 ilet. 470; Hale v. N. J. Steam Xav. 
 Co., 15 Conn. 5.39; >f. J. Steam Nav. Co. v. Merchants' Bank, 6 How. IT. S. .144; 
 Spence v. Chadwick, 10 Adolph. and El. (X S.) 517; Green v. Hern, 2 Penn. Ifi"; 
 Merritt v. Earle, 2U X. Y. 115; Hill ilanuf. Co. v. Boston &, Lowell R. R. Co., 104 
 Mass. 122. 
 
 2 HoUister v. Xowlen, 11) Wend. 2:54, 241, A. D. ISSS. 
 
 ' The discussion related to the carrier's claim to restrict his common law liability 
 by ageneral notice. See 11 Geo. IV., and 1 Will. lY. Ch. OS; 48 X. Y. 212. See Hale 
 V. N. J. Steam Nav. Co., 15 Conn. .539; Thomas v. Boston R. 10 Met. 470; Eagle v. 
 White, 6 Whart. 517. 
 
 * 2 Broom and Hadley's Comm. 1S2-1SS, Waits' ed. 
 
 6 Nugent T. Smith, 34 L. T. Rep. (X. S.) 827; L. J. Rep. 697 C. L.; Law K., 1 
 C. P. D. 423. 
 
Common Caheibes. 411 
 
 yet scarcely so great a disposition to appropriate its principles as we 
 find in the times of Lord Holt. 
 
 § 537. Act of God. The law does not hold the common carrier liable 
 for losses caused hy the act of God or by the public enemy ; and it 
 includes among the acts of God, those events and accidents which pro- 
 ceed from natural causes and cannot be anticipated or guarded against 
 or resisted; such as unexampled freshets, violent storms, lightning 
 and frost. Having fulfilled his legal duty, i. e., having guarded against 
 the danger by the exercise of ordinary skill and prudence, the carrier 
 is not answerable for a loss or injury arising from one of these agencies 
 of nature.^ He is not liable for a loss of goods caused by an unpre- 
 cedented fiood, where he has guarded against it by the use of such 
 means as naturally suggest themselves to well-informed and competent 
 business men.^ And he is liable, where he fails to exercise at least 
 ordinary forecast to provide against the danger, or fails to emploj'^ the 
 proper means for overcoming it.' 
 
 The carrier is not liable for a loss of goods caused by a violent storm 
 overtaking him at sea or upon one of our inland lakes and compelling 
 him to throw them overboard. The necessity of the situation excuses 
 the act, and the loss is considered one resulting from the act of God.* 
 The fact that he is obliged, as owner of the vessel, to bear his rateable 
 
 1 Nugent V. Smith, supra; Parsons v. Hardy, 14 Wend. 215. The act of God inter- 
 posing, excuses the performance of a contract ; Worth v. Edmonds, 52 Barb. 40; it 
 arrests performance ; Wolf v. Howes, 20 N. Y. 197 ; Parsons v. Hydar, supra. As to 
 what causes of loss will be attributed to the act of God, see McGraw v. Baltimore & 
 Ohio E. E. Co., 18 W. Va. 361; Forward v. Pittard, 1 Term R. 27; McCall v. Brock, 
 5 Strobh. 119; Friend v. Wood, 6 Gratt. 195; Packard v. Taylor, 35 Ark. 402; Slater 
 V. South Carolina E. E. Co., 29 S. C. 96; Vail v. Pacific E. E., 63 Mo. 230; Gleeson 
 V. Virginia Midland Ey. Co., 140 U. S. 485. 
 
 '^Nashville and C. E. Co. v. David, 6Heiskell (Tenn.),261; EailroadCo. v. Eeeves, 
 10 Wallace, 191; Pearce v. The Thomas Newton, 41 Fed. Eep. 106; American 
 Express Co. v. Smith, 33 Ohio St. 511; Norris v. Savannah, F. & W. E. E. Co., 23 
 Fla. 182; Wallace v. Clayton, 42 Ga. 443. 
 
 8 Bowman v. Teall, 23 Wend. 306; ante, §§ 344, 345. The carrier is not bound to 
 exercise the highest degree of diligence to preserve the property from injury resulting 
 from the act of God, but he is required to bestow such care as an ordinarily prudent 
 person or carrier would bestow under like circumstances ; and for a failure to exercise 
 such care he will be liable. Black v. Chicago, B. & Q. E. E. Co., 1 Neb. L. J. 30. 
 "There is an ex post facto wisdom, which, after everything has been done without 
 success, can suggest that something else sliould have been attempted; but this is a 
 sagacity much more astute than ordinary human foresight, and can hardly furnish a 
 fair rule by which to determine the propriety of what has been done in good faith and 
 with judgment exercised under the best lights afforded." American Express Co. v. 
 Smith, 33 Ohio St. 511, per Wbight, J. 
 
 * Price V. Hartshorn, 44 Barb. 655; S. C. 44 N. Y. 94; Gillett v. Ellis, 11 111. 579. 
 
412 La"\v or Bailments. 
 
 proportion of the loss, is generally sufficient to insure the exercise (.i 
 the highest skill and prudence on his part, before resorting to the ex- 
 treme act of jettison ; an act for which he is not answerable as a carrier, 
 when it is justified by the exigency of the storm ; and a loss towards 
 which, the goods being duly shipped, all persons deriving a benefit 
 from the sacrifice, must contribute 2^''^' ruta;'^ as they must, where 
 a loss is caused by fire while at sea, arising from a stroke of light- 
 ning.^ 
 
 Winter closes the navigation of our canals, rivers and lakes each 
 year, without any regularity in respect to the time of the interruption ; 
 the close can be anticipated, and the carrier can arrange his plans and 
 make engagements in the confident expectation that the time will not 
 vary more than fifteen, or at the most, twenty days, from one year to 
 another. In making his contract towards the close of the season, the 
 carrier has no advantage over his customer ; and neither of them can 
 foresee how early the ice will form so as to prevent the passage of boats." 
 When it does form, arresting the voyage, or causing damage to the 
 goods, it is such an intervention of superior force as will excuse delays 
 and losses arising therefrom, without releasing him from the obligation 
 of his contract. As soon as the obstruction ceases, he must resume the 
 voyage and carry forward the goods ; and in the mean time he must 
 use all diligence to preserve the property.'' 
 
 § 5.38. The carrier is not responsible for delays or losses caused by 
 heavy falls of snow, that hinder and delay the transportation of goods.' 
 
 1 Gould V. Oliver, 4 Bing. 142; placed on deck witli the owner's consent the owner 
 assumes the risk of such a loss. See Barber v. Brace, 3 Conn. 9; Lawrence v. Min- 
 turn, 17 How. U. .S. 100; Johnston v. Crane, 1 Kerr, li-JG; Sayward v. Stevens, .3 Gray, 
 97; Mouse's Case, 12 Co. E. 63; Bancroft's Case, cited in Kenrick v. Eggleston, 
 Aleyn, 93; post, § 012. 2 kelson v. Belmont, 5 Duer, 310; S. C. 21 X. T. 36. 
 
 3 Worth V. Edmonds, .52 Barb. 40. 
 
 * Parsons v. Hardy, 14 Wend. 21."j; Bowman v. Teall, 20 Wend. 306. West v. Steam- 
 boat Berlin, 3 Iowa, 532. Goods were shipped late in the season at Dubuque for St. 
 Paul, and it was held that the danger of a close of navigation by ice, entered into the 
 contract. In Lowe v. Moss, 12 111. 477, the goods were shipped late in the fall at 
 St. Louis for La S.illr, on the steamboat Avalanche, and the boat was unable to 
 reach La Salle in consequence of the ice, and the master stored the goods at Hen- 
 nepin, from wliich the owner took part of them, the rest being injured by high 
 water; held, that the carrier was justified in the delay arising from the obstruction, 
 and was not released from the contract. Harris v. Rand. 4 X. H. 259, assumes the 
 same principle. 
 
 ^ Ballentine v. North, Mo. E. Co., 40 Mo. 491, holds that a snow storm so heavy as 
 to delay the business on a railroad, is an act of superior force, which excuses the car- 
 rier so far as it hinders and delays the running of the cars. To the same effect see 
 Pruitt V. Hannibal, etc., E. R. Co., 02 Mo. 527. Briddon v. Great Northern K. Co., 
 
CoMMOK Carkiees. 413 
 
 Under his implied contract, he does not insure against injuries to fruits 
 and vegetables by freezing, while in his hands ; the action of frost be- 
 ing regarded by the law, in spite of its negative character, as one form 
 of the superior force, or act of God. The owner can anticipate the 
 danger from frost as well as the carrier, and he is understood to take 
 the risk incident to the transportation from the weather, where the 
 carrier is not chargeable with negligence.^ Is it the carrier's duty to 
 give fruits and vegetables, in his hand and exposed to danger from 
 frost, a preference over other goods in sending them forward ? He has 
 the right to give them a preference, where he receives them at the 
 same time with goods that are not thus perishable.^ And he is liable 
 for the damages where he unnecessarily delays the transportation late 
 in the season, and thus by his negligence subjects them to the action 
 of frost. He is bound to use greater diligence in loading and forward- 
 ing them on account of the special danger to which they are exposed.* 
 He is liable for the damages caused by his inexcusable delay, under a 
 contract relieving him from liability for injuries resulting from the 
 weather during the transportation.* 
 
 § 539. A carrier cannot excuse himself by alleging a loss from inev- 
 itable accident, where he has brought the goods into the danger by a 
 deviation from the established route, or from the route prescribed by 
 the terms of his contract.^ A carrier receives goods on his vessel at 
 New York to be carried to Norwich, Connecticut, and the usual route 
 is through the Sound ; the Sound being obstructed with ice, very late 
 in the season, the carrier goes around on the south side of the island, 
 
 28 L. J. Exch. 51 ; 32 L. T. 94, holds that the carrier of goods and cattle is not bound 
 to use extraordinary efforts or to incur extra expense to surmount obstructions caused 
 by the act of God, such as a heavy fall of snow ; 4 H. and K. 84*7. 
 
 1 Swetland v. Boston and Albany E. Co., 102 Mass. 276,282. The carrier received at 
 Albany, on the afternoon of December the seventh, a car-load of apples to be carried 
 forward to Springfield, Mass., and being overtaken by a heavy snow-storm, left the car 
 with a part of his train just east of Pittsfield over night, and the apples were frozen. 
 See Brig Collenburg, and Nelson v. Woodruff, 1 Black. 156, lYO; Clark v. Barnwell, 
 12 How. U. S. 272. 
 
 2 Marshall V. N. T. Central Tt. Co., 45 Barb. 502; S. C. 48 N". T. 660; Tierney v. 
 New York Cent. & Hudson E. E. E. Co., 76 N". Y. 305; Peet v. Chicago, etc., Ey. Co., 
 20 Wis. 594. 
 
 3 Wing V. The N. Y. and Erie E. E. Co., 1 Hilton, 235, 243; Wolf v. American Ex. 
 Co., 43 Mo. 421; Hewett v. Chicago, Burlington, etc., Ey. Co., 63 Iowa, 611; McGraw 
 V. Baltimore & Ohio E. E. Co., 18 W. Va. 361; Tierney v. New York Cent. & H. E. 
 R. E. Co., 76 N. Y. 305. * Place v. Union Express Co., 2 Hilton, 19, 26. 
 
 5 Heyd v. Inman Steamship Co., 14 Hun, 564; Michaels v. N. Y. Cent. E. E. Co., 30 
 N. Y. 564; Read v. Spauldlng, 30 N. Y. 630; Eeid v. St. Louis, etc., R. R. Co., 60 
 Mo. 199. 
 
414 Law of Bailments. 
 
 and while at sea is caught in a gale and compelled to throw the goods 
 overboard ; and this is held a deviation from the established route, 
 rendering the carrier liable for the loss.^ Here is another illustration: 
 a carrier by a line of vessels receives goods on his ship at Philadelphia 
 to be carried to Baltimore by the way of the Chesapeake and Delaware 
 Canal, the dangers of the navigation excepted; and the canal being 
 found out of order, so that he cannot pass through it, the carrier pro- 
 ceeds down the bay and out to sea, with the intention of going round 
 to Baltimore ; being caught in a gale at sea, his vessel strikes on a 
 shoal, and is with the cargo totally lost ; and the carrier is held liable 
 for the loss of the goods.^ The same rule has been applied in England: 
 plaintiff put on board defendant's barge a quantity of lime to be con- 
 veyed from the MedT^'uy to London ; the master of the barge deviated un- 
 necessarily from the usual course, and during the deviation a storm arose 
 and wet the lime, and the barge taking Are thereby, the whole was lost; 
 and it was held that the defendant was liable, and that the cause of 
 the loss ^^■as sufficiently proximate to entitle the plaintiff to recover 
 under a declaration alleging the defendant's duty to carry the lime 
 without any unnecessary deviation, and averring a loss in consequence 
 of such deviation.'' The carrier is bound to go by the usual and or- 
 dinary route ; * and where he deviates therefrom and encounters an acci- 
 dent or a storm causing a loss, it does not lie with him to say, that he 
 might have encountered the same or a different storm, with a like 
 result, on the usual route.'' 
 
 § 540. Having incurred a liability by a breach of duty or by a breach 
 of contract, the carrier cannot excuse himself or change his situation, 
 by showing a subsequent loss of the goods by superior natural force. 
 If he receive goods to forward by a particular steamer, and on its being 
 withdrawn from the route sends them by another steamer without con- 
 sulting the owner, he must bear the responsibility himself ; he incurs 
 the liability of an insurer, and cannot excuse himself by showing that 
 the goods were lost in a subsequent wreck of the ship."* If he receive 
 
 1 Crosby v. Fitch, 12 Conn. 410. It is suggested tliat a usage to go by the other 
 route, in cases of obstruction, would justify the carrier in adopting that course. 
 
 '- Hand v. Baynps, 4 Wliarton, 204. 
 
 3 Davis V. Garrett, Bing. R. TIC; Pariierv. James, 4 Campb. 112; Hadley v. Clarlc, 
 8 Term R. 259. As to what constitutes a deviation see Hostetter v. Park, 137 U. S. 30. 
 
 * Hales V. London & iSTorthwestern R. Co. 4 Best and Smith, 66; Powers v. Daven- 
 port, 7 Blackf . 407. 
 
 ^ Powers V. Mitchell, 3 Hill, 54.5. Where a bridge on the line of a railroad has been 
 carried away by an extraordinary freshet, the carrier is not bound to seek another 
 route. American Express Co. v. Smith, 38 Ohio St. .ill. 
 
 (•■ Goodricli v. Thompson, 4 Eobt. 75 ; S. C. 44 X. Y. 324. 
 
Common Careiees. 415 
 
 goods to carry by rail, exempting himself from liability for losses by 
 fire, he waives his exemption and renders himself liable as an insurer, 
 when he assumes to carry the goods by water.^ He renders himself 
 liable for the consequences, when he departs from the terms of his con- 
 tract prescribing the way or the mode of the conveyance.^ He does 
 the same thing, where he disregards the owner's instructions in carry- 
 ing, or in sending forward the goods at the end of his line.^ He sends 
 them at his own risk. 
 
 § 541. The law relieves the carrier from liability for losses caused by 
 superior force, when the same occur without rashness or negligence on 
 his part ; and it does not attribute losses to the act of God, when the 
 carrier by his negligence or want of prudence and foresight, brings the 
 goods in his custody under the operation of destructive natural forces ; 
 as where he carries the goods into a place of danger, or leaves them ex- 
 posed to danger, and they are damaged by a freshet ; * or where he fills 
 a steam-boiler with water, and negligently leaves it over night to the 
 action of frost, causing a pipe to crack and leak, and thus injure the goods 
 with water.* The same rule has been applied where the carrier un- 
 reasonably detained the goods at a depot, and they were injured by an 
 extraordinary freshet. His neglect was considered as concurring in 
 and contributing to the injury ; it delayed the goods and so exposed 
 them to peril. ^ On the other hand, in some of the cases in other states, 
 a former delay on account of which the goods came, at a subsequent 
 stage, in their transit, under the action of an extraordinary flood, at a 
 point which they would have passed safely but for the delay, has not 
 been regarded as a cause of the loss ; on the ground that the law re- 
 gards the proximate as the true cause of the loss and does not consider 
 the remote cause.' But these decisions are in direct conflict with the 
 law as settled in this State.' 
 
 1 Maghee v. Camden & Amboy E. E. Co., 43 N. T. 514, 521. Bostwick v. Balti- 
 more & Ohio E. E. Co., 45 N. T. 712. 
 
 2 Steel V. Flagg, 5 Barn. & Aid. 342; Danseth v. Wade, 2 Scam. 283; Hartung v. 
 Pepper, 11 Pick. 41. 
 
 3 Johnson v. S. T. Central E. E. Co., 31 Barb. 196; S. C. .33 X. Y. 610; Ackley t. 
 Kellogg, 8 Cow. 223. See as to effect of the contract, 56 N". T. 429; Brown v. Mott, 
 22 Ohio St. 149; L. M. E. E. Co. v. Washburn, 22 Ohio St. 324. 
 
 * Campbell v. Morse, 1 Harper S. C. E. 40S; Wallace v. Vigus, 4 Blackf. 260; Boyle 
 V. M'Laughlin, 4 Harris & John. E. 291; Williams v. Grant, 1 Conn. E. 487. 
 
 5 Siordett v. Hall, 4 Bing. E. 607. 
 
 6 Eead v. Spaulding, 5 Bosw. 395; S. C. 30 K T. 630; Michaels v. K. Y. Central E. 
 E. Co., 30 N. Y. 564. 
 
 ' Benny v. N. Y. Central E. Co., 13 Gray, 481; Morrison v. Davis, 20 Penn. St. 171; 
 approved in Eailroad Co. v. Eeeves, 10 Wallace, 176. 
 8 Condict V. Grand Trunk E. E. Co., 54 N. Y. 500, 505, 506. 
 
416 Law of Bailjients. 
 
 A breach in the banks or locks of the canal, or the bad condition of 
 the highway used by the carrier, or low water in the river on which 
 the goods are to be conveyed, inteKrupting the navigation, will excuse 
 a delay in the carriage of goods ; but in the mean A\'hile tlie carrier is 
 bound to keep the goods safely, and he is required to anticipate and 
 provide against the usual and ordinary dangers by the waj', such as 
 freshets.^ An unusual freshet interrupting the navigation on a canal, 
 is not a legal excuse for a failure to fulfill an express contract to carry 
 and deliver goods within a given time ; especially where it is not shown 
 that the transportation could not have been accomplished by any 
 means. ^ 
 
 § 542. A loss is not considered as arising by the act of God when any 
 human agency concurs in producing it. The exception in favor of the 
 carrier does not cover inevitable accidents which are in part caused by 
 human agency ; and it does not cover losses remotely caused by supe- 
 rior force ; as where a ship and goods were lost through the combined 
 agency of man and the natural current of a river changing the chan- 
 nel ; ^ or where a vessel was pierced and goods lost on the river, by the 
 mast of a ship which was sunken m the channel by a storm 'two days 
 before ; * or where a vessel was wrecked and goods lost by mistaking 
 the lights on a stranded vessel for the lighthouse, and thus running on 
 shore in a storm hi the effort to enter the harbor ; ^ or where a severe 
 storm produced a very low tide and thereby caused the carrier's barge 
 to strike agamst a timber projecting from the lower part of the wharf.' 
 The carrier is liable, when his negligence mingles or combines with the 
 act of God in causing the loss.' 
 
 The law does not excuse a loss by a carrier, when his vessel runs 
 upon rocks or shoals that are well known to navigators ; and it may be 
 
 1 Wallace v. Vigus, 4 Blackf. R. 260; Boyle v. M'Laughlin, 4 Harris and John E. 
 291 ; Hand v. Baynes, 4 Whart. 204. 
 
 ~ Harmony v. Bingham, 12 N. Y. 99; Van Buskirk v. Roberts, 31 N. Y. 661, 675; 
 Collier v. Swinney, 16 Mo. 484. See WTieeler v. Connecticut Mut. Life Ins. Co., 82 
 X. Y. 543, 551; Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487; Worth v. 
 Edmonds, 52 Barb. 40, 44; Graves v. Berdan, 29 Barb. 100; Cobb v. Harmon, 29 Barb. 
 472, 476; Ward v. Hudson River Building Co., 125 I^. Y. 230, 236; Stewart v. Stone, 
 127 N. Y. 500. 
 
 8 Smith V. Shepherd, Abb. on Shipp., Part 3, Ch. 4, § 1. 
 
 * Merritt v. Earle, 31 Barb. 38; S. C. 29 N. Y. 115; Mynardv. Syracuse, etc., B. K. 
 Co. 71 N. Y. 180, 187. 
 
 s SicArthur v. Sears, 21 Wend. 190. 
 
 « New Brunswick Steamboat Co. v. Tiers, 4 Zab. (N. J.) 697. 
 
 'Wolf V. Araer. Express Co., 43 Mo. 421; Dibble v. .Seligson, 1 Woods, 406; 
 Williams v. Grant, 1 C(inn. 4S7; McGraw v. Baltimore & Ohio R. B. Co., 18 W. Va. 
 361; Gulf, C. * S. F. R. R. Co. v. McCorquodale, 71 Texas, 41. 
 
Common Caeeieks. 417 
 
 questioned whether he can excuse himself from liability when he runs 
 his vessel upon an unknown reef, not Itiid down on any chart.^ The 
 vis inertice of a chain of rocks just covered by the water, can scarcely 
 be termed an act of any kind. A newly formed obstruction in the 
 channel, placed there by the current, may with much more propriety be 
 termed an act of superior force, when the carrier's vessel strikes it 
 without any failure in diligence or skill on his part.^ 
 
 § 543. A fire kindled by a stroke of hghtning is considered an act of 
 God; accidental fires, though wrought upon by a gale of wind and 
 kindled into a great conflagration, are not so considered ." The carrier 
 insures against losses ))y an accidental fire, from the time he receives 
 the goods as a carrier ; * during the transit ; and until he delivers them 
 to the next carrier, or stores them when that becomes necessary ; ^ or 
 carries them to the place of their destination and gives the consignee 
 a reasonable opportunity to receive them." The ship carrier is equally 
 liable under the common law ; '' as are also all inland carriers by land or 
 by water.^ Even an exemption from losses by fire, will not excuse the 
 carrier, where his delay exposes the goods to that danger." 
 
 The statute of the United States regulating the transportation of 
 passengers and merchandise, expressly exempts the owners of vessels 
 (except canal-boats, barges, lighters and other craft used in rivers and 
 inland navigation) from liability for any loss or damage to any mer- 
 chandise shipped or taken on board, happening by reason or by means of 
 any fire, unless the same is caused by the owner's neglect or design." 
 The lives of the master and crew on board of a merchant vessel at sea, 
 
 1 Williams v. Grant, 1 Conn. 487; Penneville v. Guiles, 5 Harrington, 238; Friend 
 V. Woods, 6 Gratt. 189. 
 
 2 Smyrl v. Niolan, 2 Bailey, 421; Faulkner v. Wriglit, 1 Eice, 108. 
 
 8 Merchants' Dispatch Trans. Co. v. Kahu, 76 Illinois E. .520; Merchants' Dispatch 
 Co. V. Smith, 76 111. 542; Chicago & N. W. E. E. Co. v. Sawyer, 69 111. 285; relating 
 to the great Chicago fire; Shelton v. Merchants' Dispatch Trans. Co., 59 N". T. 258; 
 Lamh y. Camden & Amboy E. E. Co., 46 JJ'. T. 271, 286; Chamberlain v. Western 
 Transp. Co., 44 N. T. 305, 307; Miller v. Steam Kav. Co., 10 N. T. 431. 
 
 * Ante, §§ 523-531; Lakeman v. Grinnell, 5 Bosw. 625; Fenner v. Buffalo, etc., 
 E. E. Co., 44 N. T. 505. 
 
 5 Mills V. Michigan Central E. E. Co., 45 K. T. 622; Miller v. Steam Nav. Co., 10 
 N. T. 431; Gould v. Chapin, 20 N. T. 259. 
 
 6 BurneU v. N. T. Central E. E. Co., 45 N. Y. 184; 64 N. Y. 254. 
 
 T Forward v. Pittard, 1 T. E. 27; Hyde v. Trent Nav. Co., 5 T. E. 389; Parker v. 
 Flagg, 13 Maine, 181; Moore v. Michigan E., 3 Mich. 23. 
 
 ' Hale V. N. J. Steam Nav. Co., 15 Conn. 539; N. J. Steam Nav. Co. y. Merchants' 
 Bank, 6 How. U. S. 344; Swindler v. Hilliard, 2 Eich. 286; 10 N". Y. 431; 20 N". Y. 
 259; 46 N. Y. 271. " Condict v. Grand Trunk E. Co., 54 K. Y. 500. 
 
 1" E. S. of U. S. p. 832, § 4282 and § 4289; the statute covers baggage : Chamberlair 
 V. Western Tr. Co., 44 N. Y. 305; Walker v. Transp. Co., 3 Wallace, 150. 
 
 '2~ 
 
418 LATt\' OF Bailments. 
 
 are pledged for their diligence and good faith, iind it is not tbouglit 
 necessary or just to hold the ship-owner Uable as an msurer against 
 losses by fire, in our coasting trade and foreign commerce, when the 
 same occur without his fault ; and the statute does not apply when 
 the fire occurs by his neglect or design.^ By its terms tliu act does not 
 apply to any description of vessels used in rivers or inhind navigation ; 
 and it has been adjudged that vessels running upon Uie Great Lakes 
 or upon the Long Island Sound, are not to Ije considered as engaged 
 in inland navigation, within the meaning of the statute.^ 
 
 § 544. The act of God which excuses a carrier, has been defined to 
 be a direct and violent act of nature ; " and it has been adjudged that a 
 sudden gust of wind, by which the hoy of a carrier shooting a bridge, 
 is driven against a pier and overset by the violence of the shock, may 
 be deemed the act of God ; * and that a sudden cassation of the wind 
 may be so considered, when it leaves a sailing vessel beating up the 
 river, on the point of changing her tack, and she in consequence of this 
 instant loss of power runs ashore and sinks.'' " Tlie sudden gust in the 
 case of the lioyman, and the sudden and entire failure of the wind suf- 
 ficient to enable the vessel to beat, are equally to be considered the act 
 of God. He caused the gust to blow in the one case ; and in the other 
 the wind was stayed by Him." The decision has been criticised, and 
 our courts have refused to excuse the cariier where the proximate cause 
 of the loss of goods in his custody, was a sudden gust of wind diverting 
 the course of a distant fire, so as to drive the flames upon them.° 
 
 § 545. While the act of God, working the destruction of goods, will 
 
 ^ Knowlton v. Providence & X. Y. Steamship Co., 5:; N. T. 70; Xorwich Co. y. 
 ■\Vriglit, l:; Wallaco, 104^116; X. Y. Central E. E. Cu. v. Lockwood, IT Wal. :357; Hill 
 Manuf. Co. v. Providence & N. Y. Steamship Co., llo Mass. 495. Post, § 550. 
 
 - Moore v. Transp. Co., 24 How. U. S. 1; Knowlton v. Providence it X. Y. Steam- 
 ship Co., 33 N. Y. Superior Ct. 370. The disastrous consequences of the loss of the 
 Lexington, burned on Long Island Sound, prompted the enactment of the statute; 
 and the Great Lakes are not more inland than the Mediterranean Sea. The jiu'isdic- 
 tion of the State courts is not affected by the statute unless pro^jer proceedings are 
 taken by some party interested. Baird \'. Daly, 57 N. T. 236; Steamboat Co. v. Chase, 
 16 Wallace, 522. See Chamb;rlain v. Western Transp. Co., 44 X". Y. 305. 
 
 ^Friend v. Woods, 6 Oratl, ISO. The definition is not perfect : a rail broken by 
 force of frost is an act of God. McPadden v. New York Cent. E. I!. Co., 44 X. Y. 
 47s, 487. Sr.i Forward v. Pittard, 1 Term. E. 27; McCall v. Brock, 5 Strobh. 119; 
 McGraw v. Baltimore & Ohio E. E. Co., 18 W. Va. 301; Chicago & X. W. Ry. Co. v. 
 Sawyer, 09 111. 2K5. ^ Ames v. Stevens, 1 Strange, 128. 
 
 5 Colt V. JI'Mechen, John. E. 101); cited in Parsons v. Monteath, 13 Barb. 353; in 
 Hoij.._-r'r V. Xowlen, 19 W^end. 234, 23S; in McArthur v. Sears, 21 Wen.l. 190; in 
 Hulett V. Swift, 42 Barb. 230, 250; and in Price v. Hartshome, 44 Barb. 050, OOO. 
 
 « Miller v. Steam Xav. Co., 10 X. Y. 431. 
 
COMMOX Cakiiieks. 419 
 
 excuse the carrier for their non-delivery, it does not leave him unharmed. 
 If he accept goods to carry from one place to another, ami on the 
 way they are destroyed by a superior and irresistible force, he can- 
 not recover a pro rata compensation for their carriage. The owner 
 loses the goods and the carrier his freight.^ Nothing is earned or due 
 under the contract. But when the goods are not destroyed, and the 
 voyage is interrupted by superior force, and tlie owner accepts the 
 goods, the carrier is entitled to recover pro rata freight ; and the rule 
 is the same where the shipper abandons the cargo and the insurers 
 accept the goods.^ A forced acceptance of the goods by the owner at 
 an intermediate port, does not imply a contract on his part to pay pro 
 rata freight ; on the other hand, it is the carrier's duty, and it is his 
 right to send or repair and carry forward the goods, and so earn full 
 freight.^ ' 
 
 § 546. "We sometimes find it asserted in the decisions that the act of 
 God, inevitable accidents, and dangers of the sea, are expressions of 
 very similar legal import, excusing a loss, whether excepted in the bill 
 of lading or not.* But these terms do not convey the same sense ; they 
 cannot be sued interchangeably, the one phrase for the other. The perils 
 or dangers of the sea arise in some instances from circumstances which 
 cannot be attributed to the act of God, and are unquestionably covered 
 by a policy of insurance against the perils of the sea ; as where a loss 
 arises from a collision, without fault on the part of either vessel ; " or 
 where a loss arose from the sudden impressment of sailoi 3 sent on shore 
 to fasten the ship." The policy covers losses directly attributable to 
 the perils insured against, in spite of some want of diligence to escape 
 them ; and it does not cover a loss resulting from a collision caused by 
 the negUgence of the master and crew ; e. g., damages recovered by the 
 owners of the injured vessel.' The law regards the proximate as the 
 
 1 Harris v. Eand., 4 N. H. R. 259; Osgood v. Groning, 2 Campb. 466; Luke v. Lynde, 
 2 Burr. 882; Palmer v. Lorillard, 16 John. R. 348; Ogden v. Barker, 18 John. R. 87; 
 after tendering the goods to the consignee, the carrier not being in fault may recover 
 freight, though the goods are afterwards destroyed by superior force. Clendaniel v. 
 Tuckerman, 17 Barb. 184. 
 
 2 Smyth V. Wright, 15 Barb. 51 ; Parsons v. Handy, 14 Wend. 215 ; McKibbin v. 
 Peck, 39 X. T. 262. 
 
 3 A. M. Ins. Co. V. Bird, 2 Bosw. 195; 6 Bosw. 474; Ellis v. Willard, 9 N. T. 529. 
 
 4 Crosby v. Fitch, 12 Conn. 419; Williams v. Grant, 1 Conn. 487. 
 
 ^Whitesides v. Thurkill, 12 Sm. & Mar. 599; Plaisted v. Boston & Kennebec S. 
 Xav. Co., 27 Maine, 132. See also Laurie v. Douglas, 15 Mees. & Wels. 746. 
 
 " Hodgson V. Malcom, 5 Bos. & Pull. R. 336; per Cowbn, J., in McAxthur v. Sears, 
 21 Wend. 198, 199. ' 
 
 ' Mathews v. The Howard Ins. Co., 11 N. T. 9; Gen. Mutual Ins. Co. v. Sherwood, 
 14 How. U. S. 351. 
 
420 Law of Bailments. 
 
 efficient or real cause of the loss under the policy. If the ship is driven 
 against another hy stress of weather, the injury she sustains is admitted 
 to be direct, and the insurers are liable for it. But when the collision 
 causes the insured ship to do some damage to the other vessel, both 
 vessels being in fault, the rule in admiralty requires the damages done 
 to both ships to be added together, and the cnmbhied amount to be 
 equally divided between the o\vners of the two. But when it turns out 
 that the insured ship has done more damage than she has received, and 
 is compelled in admiralty to pay the excess to the owners of the other 
 ship, the law does not regard this loss us a proximate effect from tlie 
 perils of the sea covered by the policy.^ The policy is sometimes drawn 
 so as to exclude any liability for losses or misfortunes arising from want 
 of ordinary care and skill in the navigation of the ship.^ 
 
 § 547. FidiUc E)u:)inj. The carrier is expressly exempted from 
 liability for losses caused by public enemies ; as by a hostile invasion 
 and seizure or destruction of property on the land, or by the capture of 
 a carrier's vessel and cargo on the sea. The law does not hold the in- 
 dividual bound to defend goods against seizure or loss from superior 
 and organized force ; " it excuses him where he uses due diligence to 
 prevent the destruction or seizure, without success ; ^ and it measures 
 the diligence demanded to escape or repel hostile force, by the nature 
 of the trust and the dangers of the road.^ 
 
 Eioters and land robbers are not classed as public enemies, under 
 the rule ; and pirates are thus classed, when they appear upon the sea 
 armed with power sufficient to compel submission.' 
 
 In times of war the commissioned vessels of the enemy are authorized 
 to capture private as well as public propertj', which is carried into port 
 within the jurisdiction of the captors, proceeded against as prize of war, 
 in the courts of admiralty, and condemned; this process is held to 
 divest the original owners of their property, and is the most frequent 
 mode in which individuals are made to suffer from the calamities of 
 war. The mere act of seizing the property, does not, either on sea or 
 land, work a change of the title ; to accomplish the change, there must 
 be a judgment of condemnation pronounced by a competent tribunal.' 
 
 1 De Yaux v. Salvador, 4 Ad. & EI. 420; 31 Eng. Com. Law. E. 104. 
 
 2 Savage v. Covn. Ex. Fire & Inland Kav. Ins. Co., 4 Bosw. 1, 19; S. C. 30 N. T. O.J5. 
 
 5 Blank V. Adams Ex. Co., 1 Duvall (Ky.), 2.i2; a seizure by Confederate soldiers 
 during the rebellion. ^ HoUaday v. Kennard, 12 Wallace, 254. 
 
 6 It holds the carrier to the same diligence as he must use to escape the act of God. 
 EaOroad v. Reeves, 10 Wallace, 170. 
 
 6 Magellan Pirates, 25 Eng. Law & Eq. 59.5; Lewis v. Ludwick, 6 Cold. 368. 
 'Page V. Lenox, 15 John. E. 172; Hudson v. Guestier, 4 Cranch, 293; Cranch, 
 281; Cook V. Howard, 13 John. E. 276; Gross v. Withers, 2 Burr. 69.3. 
 
Common Careiees. 4:21 
 
 But it is not necessary for the carrier to sliow a change of tlie title ; it 
 is enough for him to show that the goods entrusted to liim have been 
 destroyed or wrested from him by the enemy of the state — those 
 foreign enemies which are such by an open declaration or waging of 
 war. Against all such organized forms of violence, it is the duty of 
 the government to protect commerce, and shield its citizens from loss.^ 
 
 § 548. Meason mid Ground of the General Utile. With the two 
 exceptions we have mentioned, the carrier receiving goods for trans- 
 portation, must answer for them absolutely, unless he receives them 
 upon a special contract qualifying his liability. He is not liable for 
 these acts of superior force, because they are not under his control ; in 
 law, as in reason, he only engages against those events which by 
 possibility and due diligence he may prevent.^ 
 
 Plis extraordinary liability is foimded in some sense upon the reward 
 he receives ; and not, as some have thought, upon the theory of his 
 remedy over against the hundred.'' The liability existed at common 
 law long before that remedy was given by the statute of Winton ; and 
 many cases were so decided previous thereto, on the ground of the 
 reasonable premium to which he was entitled, and which at that time 
 served as a criterion of his liability. On the same ground, a fraudulent 
 misrepresentation or concealment of the value of the goods delivered 
 to him, was held to annul the contract altogether, taking from him, as 
 it does, the reward which ought to be proportioned to the risk in- 
 curred.* 
 
 § 549. A carrier is considered an insurer, and may like other in- 
 surers demand a premium proportioned to the hazards of his employ- 
 ment ; he may require the owner of goods to give such information as 
 wUl enable him to decide on the proper amount of compensation for his 
 services and risk, and the degree of care necessary to the discharge of 
 the trust ; and although he has no general right in all cases to demand 
 specific knowledge of the contents of a parcel delivered to him, it is in- 
 cumbent upon him to ascertain the nature and value of the goods, by 
 suitable inquiries or by making known the terms on which he is will- 
 ing to receive and carry them.* A general notice posted in the carrier's 
 office and other places, is not sufficient to subject the owner to a charge 
 
 1 Jeremy on Car. 31; Bell v. Eeed, 4 Bin. E. 127. 
 
 2 Jeremy on Law of Car. 32. See general rule as stated by Cliief-Justice Chubch 
 In Dexter v. Norton, 47 N. T. 64, and commented upon in Booth v. Spuyten Duyvil 
 Eolling Mill Co., 60 N. T. 487. 
 
 » Gibbon v. Poynton, 4 Burr. 2299. 
 * Titchbume v. Wiite, 1 Stra. E. 145. 
 
 5 Crouch V. The London & N. W. E. Co., 14 C. B. 253; 25 Eng. Law & Eq. 287; 
 Walker t. Jackson, 10 Meeson & Welsby, 16. 
 
422 Law of B^vilmbnts. 
 
 of fraud ; the carrier's only safe course is to announce his terms to 
 every person who applies to him for the carriage of goods, stating them 
 substantially and fairly. And if the owner, on this announcement, 
 give an answer false in a material point, the carrier will be absolved 
 from the consequences of a h >ss not occasioned by negligence or mis- 
 conduct.^ 
 
 § SfiO. The extent of the carrier's liability does not depend on the 
 terms of his contract ; it is declared by law. His undertaking, when 
 reduced to form, does not differ from that of any other person who 
 may agree to carry goods from one place to another ; and yet one who 
 does not usually exercise this public employment, will incur no re- 
 sponsibility beyond that of an ordinary bailee for hire, and is not 
 answerable for a loss by any means against which he could not have 
 guarded by ordinary diligence. It is not the form of the contract, but 
 the policy of the law, which determines the extent of the carrier's 
 liability.^ So that when he is charged as a carrier, it is on the ground 
 of an obligation imposed upon him bylaw. Ovii- oni' hundred years 
 ago. Lord Mansfield asserted the doctrine in these W( irds : " It appears 
 from all the cases for a hundred years back, that there are events for 
 which the carrier is liable independent of his contract. By the nature 
 of his contract, he is liable for all due care and diligence ; and for any 
 negligence he is suable on his contract. But there is a further degree 
 of responsibility by the custom of the realm, that is by the common 
 law ; a carrier is in the nature of an insurer." ^ 
 
 The law has indeed always recognized the existence of a contract, 
 whilst it has at the same time declared the obligation of the carrier to 
 be a public duty, by allowing the plaintiff to vary the form of his 
 action according to the circumstances of the case, and for the greater 
 convenience of the party injured.* It permits the carrier to be charged 
 in contract, as well as in tort, on a clear principle of mutual equity ; 
 that there should be a consideration adequate to the risk on the one 
 side, and due precaution and diligence exerted on the other.* In 
 
 ' Hollister v. Nowlen, 19 Wend. 234; Door v. N. J. Steam Xav. Co., 11 X. Y. 4.S.J; 
 Blossom V. Dodd, 43 X. T. 2C4. Ante, § 530. 
 
 2 Per Chief- Justice Bkojtsoh, in Hollister v. Xowlen, 19 Wend. 239. Tlie principle 
 is applied in Merritt v. Earle, 29 :N. Y. 115, 121, 122; and in Xolton v. Western K. 
 Corporations, 15 N". Y. 444; and in Bissell v. M. S. & N. I. P.. Cos., 22 N. Y. 258, 307; 
 and in Atlantic Mut. Ins. Co. v. McLoon, 48 Barb. 27. 
 
 8 Forward v. Pittard, 1 Term R. 27; 1 Esp. K. 3U; Ansell v. Waterhouse, 1 Chitty, 1 
 
 * Boson V. Sandford, 1 Salk. 440; Buddie v. Wilson, 6 Term R. 369; Dickson v. 
 Clifton, 2 Wilson, 319; Dale v. Hall, 1 Wilson, 282. 
 
 " Jeremy on Car. 3r, ; Philadelphia & R. Ti. R. Co. v. Derby, 14 How. XJ. S. 4^3 ; Farwell 
 V. Boston R. U. 4 Met. 40; Carroll v. Staten Island R. R. Co., .".S X. Y. 12il, 133. 
 
Common Caeeiees. 423 
 
 assuming a public employment, he assumes the duties belonging to it ; 
 in receiving goods to carry, he makes a private contract ; and the law 
 enforces the obligation he assumes, on both grounds according to the 
 form of the action. " If he make a greater warranty and insurance he 
 wUl take greater care, use more caution, and be at the expense of more 
 guards or other methods of security ; and therefore he ought in reason 
 and justice to have greater reward." ^ 
 
 § 551. There being no special agreement by the carrier, it is not 
 necessary to consider his minor engagements implied by law; the 
 greater includes the less, and the law charges him with the safe cus- 
 tody of the goods as an insurer ; it binds him to carry and deliver the 
 goods safely, or to excuse himself by showing a loss of them by su- 
 perior force.^ The mode of carriage and the sufB.ciency of the vessel or 
 vehicle used by the carrier, becomes important subjects of inquiry 
 only, or mainly, where there has been a special acceptance, or an agree- 
 ment qualifying his liability ; and in these cases it becomes necessary 
 to consider the effect of his contract, m connection with the duties 
 imposed upon him by law.'' If he receive goods for transportation, 
 exempting himself from liability for losses arising from the perils of 
 the sea, the law implies an engagement on his part that his vessel shall 
 be staunch and seaworthy when she starts on her voyage.^ So where 
 the cause of a loss on the land is open to investigation, the law implies 
 an engagement on the part of the carrier that the carriage or vehicle 
 used by him, shall be in good order and capable of performing the 
 journey. 
 
 V. Special Contracts. 
 
 § 552. There was at one time in this State a decided drift of opinion 
 in favor of the doctrine, that common carriers should not be permitted 
 to limit their common law liabilities by a special contract ; on the 
 ground that limitations of this character tend to encourage negligence 
 and fraud, and are thus contrary to public policy.^ After some debate, 
 
 1 Gibbon v. Poynton, 4 Burr. 2299. 
 
 2 Pazzi V. Shipton, 1 P. & D. 4; H A. & E. 963. 
 
 3 Simmons V. Law, 8 Bosw. 213; 3 Keyes, 217. 
 
 ■* Lyon V. Mells, 5 East, 428; Putnam v. Wood, 3 Mass. 481; Backhouse v. Snead, 1 
 Murph. 173; Bell v. Reed, 4 Binn. B. 127. 
 
 ^ Gould V. Hill, 2 Hill R. 623; in this case Co wen, J., cites a former opinion given 
 in Cole v. Goodwin, 19 Wend. 251, 281; a decision by Stoet, J., in the case of the 
 Schooner Eeeside, 2 Sumner, 567, 575, and Atwood t. The Reliance Transp. Co., 9 
 Watts, 87. See opinion by Bbonson, J., in Wells v. The Steam Nav. Co., 2 N. Y. 
 204, 209. Co WEN, J., cites Lord Kenyon, C. J. A. D. 1793, in Hyde v. Proprietors of 
 the Trent & Mersey Navigation, 1 Esp. .36. " There is a difference where a man is 
 chargeable by law generally, and where on his contract. Where a man is bound to 
 
424 Law op Bailments. 
 
 it was considered of great importance to uphold the freedom of individ- 
 uals to contract in the carrying trade, as in other branches of busi- 
 ness ; and the rule became iirmly settled that a carrier may by express 
 contract restrict his common law liability ^ — a broad and general rule 
 which permits the parties to separate the carrier's contract for the 
 transportation and delivery of goods, from the responsibility of insur- 
 ing them against losses from accidents and casualties by the way.^ 
 
 The rule is not of recent origin. It has long been the practice of 
 common carriers by water to insert in the receipt of the goods or bill of 
 lading, an exception of the dangers or perils of the river, lakes and seas, 
 and other casualties, such as fire, leakage and breakage ; thus entering 
 into a special agreement Ti-ith the OTS'ner for the transportation of the 
 goods, and leaving him to obtain an insurance upon them against the 
 excepted dangers.'' The custom assumes the rule, and being supported 
 by judicial authority, it works a partial separation of the carrying trade 
 from the business of insurance.'' A like custom has long prevailed among 
 
 any duty, and chargeable to a certain extent by oj)eration of law, in such cases, lie 
 cannot by any act of his own discharge himself — an in the case of common carriers, 
 who are liable hy law in all cnsps of loosen except those arising from the act of God 
 or of the King's enemies; they cannot discharge tliemselves from losses happening 
 imder these circumstances, by any act of tlieir own : "^s by giving notice, for example, 
 to that effect. But the case is otherwise wliere a man is cliargeable on his own con- 
 tract. There he may qualify it as he thinks fit." He then proceeds . " I have said 
 that relaxing the common law rigor, opens the higli road to fraud, perjui-y, theft and 
 robbery. It does more. Looking to the present ordinary, not to say universal means 
 of travel and transportation, by coaches, railroads, steamboats, packets and merchant 
 vessels, the mere superaddition of negligence in respect to the safety of passengers 
 and property would constitute a most fearful item. There are no principles in the 
 law better settled than that whatever has an obvious tendency to encourage guilty 
 negligence, fraud or crime, is contrary to public policy. Such, in the very nature of 
 things, is tlie consequence of allowing the common carrier to throw off or in any wa; 
 to restrict liis legal liability. The traveler and bailor is under a sort of moral dm-ess, 
 a necessity of employing the common carrier under those legal arrangements which 
 allow any number of persons to assume that character, and thus discourage and super- 
 sede the provision for other modes of conveyance. My conclusion is, that he shall 
 not be allowed in any form to higgle with his customer and extort one exception and 
 another, not even hy express promise or special acceptance, any more than by notice. 
 He shall not be privilrgp<l to make himself a common carrier for his own benefit and 
 a mandatary or less to his employiT. He is a public servant, with certain duties de- 
 fined by law; and he is bound to perform those duties." 
 
 1 Dorr V. X. .1. Steam Nav. Co., 4 Sandf. 1.36; S. C. 11 X. Y. 4s.j; Xicholas v. Xcw 
 York Cent. & H. E. E. E. Co., so N. Y. 370, 3Ti. 
 
 ^ N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U . S. 382. 
 
 5 Gordon v. Little, 8 Serg. and Eawle, .">:;3. 
 
 * Parsons v. Monteath, 13 Barb. 3.53; Moore v. Evans, 14 Barb. .524; and Mer. Mut. 
 Ins. Co. V. Calebs, 20 N. Y. 17.3. 
 
Common Caeeibes. 425 
 
 carriers by land, of limiting their liability, by an express agreement, to 
 a greater or less extent ; and these limitations are upheld and enforced 
 nnder the principles of the common law.^ The contract is to be carried 
 into effect according to its terms, without enlarging or diminishing 
 them in their true sense and meaning.^ 
 
 § 553. We have seen that the carrier, being a public servant, is 
 obliged to accept and take charge of goods for carriage on his route and 
 •within his line of business, on being tendered a reasonable compensa- 
 tion ; ° and this is manifestly inconsistent with a right on the part of the 
 common carrier to impose terms that will relieve him from the liability 
 imposed upon him by law.'' He is by common consent at liberty to 
 prescribe reasonable rules and regulations for the conduct of his busi- 
 ness. In regard to the manner of receiving goods, booking, and paying 
 for their transportation, the carrier has, as we have seen, the right to 
 regulate and prescribe his own terms ; and if these are not complied 
 with he cannot be charged. But where these terms are complied with, 
 he is bound by reason of his employment to receive and carry the goods 
 tendered to him for carriage.^ 
 
 It follows that siDCcial agreements made with carriers for the trans- 
 portation of goods by land or water, are to be regarded as entered into 
 for the mutual accommodation of the contracting parties. Before the 
 law, they stand upon equal terms ; the carrier is tied down to a reason- 
 able reward for his services ; and he is under a legal obligation to re- 
 ceive and carry the goods offered to him. It is not therefore within his 
 power to impose unreasonable conditions upon his customers, or by any 
 act of his own to discharge himself from his common law liability. 
 Plain enough in theory, it is quite difficult in practice to adjust the 
 relative rights of the contracting parties.* 
 
 § 554. Public Notices. It is not necessary to review the decisions 
 
 1 Wyld V. Pickford, 8 M. <fe W. 443; York, Newcastle & Berwick K. Co. v. Crisp., 
 14 C. B. 527. 
 
 ^Magnin V. Dinsmore, 35 N. T. Supr. Ct. 182; S. C. 56 N". T. 168; Falkeneau v. 
 Fargo, 85 IST. T. Supr. Ct. 332. 
 
 'Doct. & Stud. 270; Jackson v. Eogers, 2 Show. 327; Lovett v. Hobbs, id. 127; 
 ante, §§ 518 to 522. 
 
 * Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115, an elaborate opinion by 
 WooDBUFP, J.; case cited in Nevins v. The Bay State S. Co., 4 Bosw. 225, 233, 236; 
 5 Bosw. 395, 404; 30 N. T. 630; 2 Daly 454, 486. 
 
 6 Ante, §§ 518, 520. 
 
 ^ In some cases we find the rights of the owner delivering the goods, presented in a 
 strong light; in others the rights of the carrier; and in others still the right of the 
 parties to regulate their relations to each other on the basis of contract. In England, 
 as we shall presently find, the carrier' s right to impose terms Is limited by statute. 
 1 E. D. Smith, 115; 4 Bosw. 225, 230. 
 
426 Law of Bailments. 
 
 marking the line of oscillation and development of the law, on this sub- 
 ject. The result can be briefly stated. In England the courts gave 
 effect to these notices for a long time ; sometimes on the theory thiit 
 they formed a part of a contract, by the tacit acquiescence of the owner 
 of goods, delivering them with a knowledge of the terms thus offered 
 by the carrier ; ^ — a misleading theory inasmuch as it assumes the car- 
 rier's right to dictate his own terms ; and sometimes on the ground of 
 a fraudulent or deceitful concealment of the nature of the package de- 
 livered, practiced with a view to evade paying the established freight.- 
 As these notices were not at all uniform, it was at length ascertained 
 that to give effect to them as parcel of an implied contract, was to 
 undermine the rule of liability imposed upon the carrier by law.' Cases 
 of negligence arising, it was found difficult to determine the degree of 
 negligence that should defeat the exemption claimed in the notice.* 
 The doctrine of notice finally began to be regretted, and limited and 
 qualified.^ It was necessary on the theory of contract, that the notice 
 should be brought home to the knowledge of the party delivering the 
 goods ; and this was often found a difficult question of fact to deal 
 Avith.^ The carrier was obliged to receive all packages tendered to him 
 for carriage, and he had no sure means of ascertaining the value of 
 their contents ; without which it was not possible for him to secure a 
 just compensation for his services.' The decisions falling into some 
 conflict, a statute was passed in 1830 regulating the rights of the par- 
 ties, giving to the carrier by land the right to fix his charges for carry- 
 ing parcels by notice, and taking from him every other right or claim 
 to limit his common law liability by notice.^ A liie result, so far as 
 
 1 Leeson v. Holt, 1 Stark. 148 ; Nicholson v. Willan, 5 East, 507 ; ilaving v. Todd, 
 1 Stark. 72; Harris v. Packwood, '-j Taunt. 271; Brooke v. Pickwick, 4 Bing. 218; 
 Marsh v. Home, 5 Barn. & Cres. 322. 
 
 ^Tyly V. Morrice, Carth. 485; Gibbon v. Paynton, 4 Burr. 2298; Jliles v. Cattle, 
 li Bing. R. 743; Batson v. Donovan, 4 Barn. & Aid. 21; Beck v. Evans, 10 East. 244. 
 
 2 Garnett v. Willan, 5 Barn. & Aid, 53, A. D. 1821, discredits some precetling 
 cases. 
 
 * Nicholson v. Willan, supra; Riley v. Home, 5 Bing. 217; 2 Moore & Payne, 3:)!; 
 Sleat V. Fagg, and Wright v. Snell, 5 Bam. & Aid. 342, 350; Bickett v. Wiliaii, 2 
 Bam. and Aid. 350; 3 Campb. 207; 16 East, 244; Bodenham v. Bennett, 4 Price. 31; 
 1 Esp. 36. 
 
 5 Smith V. Home, 8 Taunt. 144, A. D. ISIS. BrKBOUon, J.: "I lament that the 
 doctrine of notice was ever introduced into Westminster Hall." 
 
 s Brooke v. Pickwick, 4 Bing. R. 222, A. D. 1S27; Rowley v. Home, 3 Bing. K. 2; 
 Griffiths V. Lee, 1 Carr. and Payne, 110. 
 
 '' Riley v. Home, 2 Moore & Payne, 341; 5 Bing. 217. 
 
 8 11 Geo. IT., and 1 Wm. IV., Ch. 68, passed July 23, 1830: the principles of the 
 statute were applied to railway and canal companies in 1854, by 17 and 18 Vict. Ch. 31. 
 
Common Caeeieks. -i-Il 
 
 the general principle is concerned, has been reached in this country in 
 the natural development of the law, by judicial decisions ; and the car- 
 rier cannot limit his liability by a notice.^ Assent by the party deliver- 
 ing the goods must be shown, to give effect to the notice ; ^ and that 
 creates a special contract. 
 
 § 555. Under the statute referred to, mail contractors, stage-coach 
 proprietors and other common carriers for hire by land, are not liable 
 for injury or loss of money, bills, notes, jewelry and other articles of 
 great value in small compass, particularly specified, contained in pack- 
 ages or parcels, when the value of the articles or thing enclosed ex- 
 ceeds the sum of ten pounds, unless the value thereof is declared by the 
 person delivering the same, and a compensation paid or agreed upon for 
 the increased risk incurred in the conveyance of such valuable articles.^ 
 When the contents of a package or parcel of this kind exceeding ten 
 pounds in value, are made known on its delivery, the increased charge 
 is to be paid according to the carrier's notice posted in his office ; ^ a 
 reasonable charge proportioned to the risk assumed by the carrier. On 
 the owner's paying or engaging to pay the increased charge, the car- 
 
 1 Hollister v. ISTowlen, 19 Wend. 234, A. D. 1838; Cole v. Goodwin, 19 Wend. 251. 
 These cases relate to the baggage of a passenger, and the opinions are very elaborate. 
 See also Clark v. Faxton, 21 Wend. 153; Camden & Amboy R. K. & Transp. Co. v. 
 Belknap, 21 Wend. 354; Powell t. Myers, 26 Wend. 591. The rule is applied generally, 
 in Dorr V. K J. Steam Nav. Co., 4 Sandf. 136; S. C. 11 N. T. 485; and in Blossom 
 V. Dodd, 43 N. T. 264; Derwart t. Loomer, 21 Conn. 245; Moses v. Boston, etc., E. E. 
 Co., 32 N. H. 523; Kimball v. Eutland E. E. Co., 26 Vt. 247; Western Transp. Co. 
 V. Newhall, 24 111. 466; Brown v. E. E. E. Co., 11 Cush. 97; Thomas v. Boston E., 10 
 Met. 479; Jones v. Voorhees, 10 Ohio, 145; McMillan v. Michigan S. R. E. Co., 16 
 Mich. 79; New Jersey Steam ISTav. Co. v. Merchants' Bank, 6 How. U. S. 344; Duff 
 v. Budd, 3 Brod. & B. 177 ; Perry v. Thompson, 98 Mass. 252 ; Buckland v. Adams 
 Ex. Co., 97 Mass. 124; Malone v. Boston & W. E. Co., 12 Gray, 392; Brown v. East- 
 em E., 11 Cush. 97; Adams Ex. Co. v. Haynes, 42111. 89; Georgia E. E. Co. v. Ganu, 
 68 Ga. 350. 
 
 2 Grace v. Adams, 100 Mass. 560; Van GoU v. The S. E. E. Co., 104 Eng. Com. 
 Law E. 75. In these cases the party delivering the package took a receipt or paper 
 embodying a contract. 
 
 " The articles enumerated are as follows : Gold and silver coin of the realm or of 
 any foreign state ; gold or silver in a manufactured or unmanufactured state, precious 
 stones, jewelry, watches, clocks, or time-pieces of any description; trinkets, bills, 
 notes of any bank in England, Scotland, or Ireland ; orders, notes or securities for 
 payment of money, English or foreign; stamps, maps, writings, title deeds, paintings, 
 engravings, pictures, gold or silver plate or plated articles ; glass, china, silks in a 
 manufactured or unmanufactured state, and whether wrought up or not with other 
 materials; furs, laces, or any of them, contained in any parcel or package. 
 
 * The second section of the act permits this in express terms. A public notice does 
 not avail the carrier. Walker v. The York & North M. R. Co., 2 E. & C. "30 ; 22 Eng. 
 L. & Eq. 315. 
 
428 J>A\V OF B/ULMENTS. 
 
 rier or his agent is required to give a receipt for the package or parcel, 
 specifying that the same has been insured ; and a refusal to give the 
 receipt when required, or an omission to post the notice in his office, 
 deprives the carrier of any benefit to be derived under the act, and 
 leaves him liable as at common law, and liable to refund the increased 
 rate of charge. 
 
 There must be a formal declaration of the nature and value of the 
 parcel when it is delivered to the carrier. If the person delivering the 
 goods fail ill this duty, when the parcel exceeds m value ten pounds, 
 the carrier is not liable for a loss of or injury to either of the specified 
 articles, by the negligence of his servants or by his own omission to 
 affix the notice in his office, as required by statute.^ The party deliver- 
 ing the goods and declaring their value, is not bound to tender, but the 
 carrier must demand, the increased charge payable thereon.^ 
 
 The general features of the statute are quite as important as those 
 already mentioned. The act does not prevent or in any ■\\'ise affect any 
 special contract made by a carrier for the conveyance of goods and mer- 
 chandise ; ^ and it provides in express terms that from and after the 
 first day of September ensuing, n(_> public notice or declaration shall be 
 deemed or construed to limit or in anywise affect the liability at com- 
 mon law of any mail contractor, staL;'e-coach proprietor or other com- 
 mon carrier, in respect of any articles or goods to be carried or conveyed 
 by them ; ■• it leaves nothing to inference ; it provides that in respect to 
 all articles and goods not enumerated in the act, the carrier shall he 
 liable for their safe carriage as at common law, and for the enumerated 
 articles also, where they are insured. It restores the rule of the com- 
 mon law.'^ 
 
 1 Hinton v. Debbin, 2 a. & D. 36 ; 2 Q. B. 646; 6 Jur. 601; Boys v. Pink, 8 C. & 
 P. 361 ; Hart v. Baxendale, 6 Exch. 75!) ; 16 Jur. 12(i ; 21 L. J. Exch. 123. 
 
 2 Great Northern K. Co. y. Behrens, 7 H. & N. 0.50 ; 8 Jur. X. S. 567 ; 31 L. J. 
 Exch. 299 ; 10 W. i;. 389 ; s L. T. N. S. 328. 
 
 ^ Section Six of the Act. 
 
 * Section Four : this section refers to public notices ; a private actual notice 
 assented to becomes a contract. Wallcer v. York & Xorth Midland R. Co., 2 Ellis & 
 B. 7.50. 
 
 ^ Bkonson, .T., in HoUister v. Nowlen, 19 Wend. 234, 241, 249. 
 
 This statute of 1st William lY., Ch. 08, was passed July 2.3d, 18.30. 
 
 Section 1 enacts : ' ' That from and after the passing of this act, no mail contractors, 
 stage-coach proprietors, or other common carrier by land for hire, shall be liable for 
 the loss of or injury to any article or articles or property of the descriptions following; 
 that is to say, gold or silver coin of this realm or of any foreign state, or any gold or 
 silver in a manufactured or unmanufactured state, or any precious stones, jewelry, 
 watches, clocks or time-pieces of any description, trinkets, bills, notes of the governor 
 and company of the banks of England, Scotland and Ireland respectively, or of any 
 
Common Carriers. 429 
 
 § 556. After the statute of 1830 had been in force in England twenty- 
 four years, its principles were applied to other common carriers by tha 
 
 other bank in Great Britain or Ireland, orders, notes and securities for tlie payment 
 of money, English or foreign; stamps, maps, writings, title deeds, paintings, engrav- 
 ings, gold or silver plate, or plated goods, glass, china, silk in a manufactured or un- 
 manufactured state, and whether wrought up or not wrought up with other materials, 
 furs or lace, or any of them, contained in the parcel or package which shall have been 
 delivered, either to be carried for hire or to accompany the person of any passenger 
 in any mail or stage-coach or other public conveyance, when the value of such article 
 or articles, or property aforesaid contained in such parcel or package, sjiall exceed the 
 sum of ten pounds, unless at the time of the delivery thereof at the office, warehouse, 
 or receiving house of such mail contractor, stage-coach proprietor, or other commou 
 carrier, or to his, her or their book-keeper, coachman, or other servant, for the purpose 
 of being carried, or of accompanying the person of any passenger as aforesaid, the 
 value and nature of such article or articles or property, shall have been declared by 
 the person or persons sending or delivering the same, and such increased charge as 
 hereinafter mentioned, or an engagement to pay the same be accepted by the person 
 receiving such parcel or package." 
 
 § 2. This section permits the carrier, whenever any such parcel or package exceed- 
 ing ten jjounds in value shall be delivered and its contents made known, to demand 
 an increased compensation for the greater risk he runs in the conveyance of such 
 valuable articles; his prices to be regulated by a notice to be posted in his office, by 
 which both parties are to be bound. 
 
 § 3. Provides that the carrier shall give a receipt for the package or parcel as in- 
 sured, and that if he refuse to give the receipt, he shall refund the insurance money 
 and be liable as at common law. 
 
 § 4. Provides- that in respect to all articles not enumerated in the act, the carrier 
 shall be liable for their safe carriage as at common law, and for them also where they 
 are insm-ed ; that no notice shall be deemed or construed to limit, or in any way affect 
 the carrier' s liability at common law. 
 
 § 5. That all receiving houses shall be deemed those of the carrier, and that any one 
 of a company of carriers may be sued separately. 
 
 § 6. This act shall not annul or affect any special contract made by the carrier for 
 the conveyance of goods and merchandise. 
 
 § 7. If any parcel or package delivered to the carrier, its value and contents being 
 declared and the increased rate paid thereon as insurance, be lost, the owner recovers 
 the value of the parcel with the insurance money paid thereon. 
 
 § 8. Nothing in this act shall be deemed to protect the carrier for hire from his lia- 
 bility to answer for loss or Injury to any goods or articles arising from the felonious 
 act of his servant; nor to protect the servant from liability for loss or injury by his 
 personal neglect or misconduct. 
 
 § 9. In a case of loss of articles delivered to the carrier and insured, their actual 
 value, and not the value put upon them on their delivery, is to be the measure of 
 damages ; and the owner of them shall make proof of their value, if so required ; but 
 the recovery shall not exceed their declared value. 
 
 § 10. The carrier may in all cases pay money into court, as in other actions, and 
 with the same effect. 
 
 § 11. This is a public act to be judicially taken notice of, without being specially 
 pleaded. 
 
430 Law of Bailments. 
 
 Railway and Canal Traf&c Act.^ Under the seventh section, a rail- 
 way or canal company is liahle for the loss of, or for any injury done 
 to any horses, cattle or other animals, or to any articles, goods, or 
 things, in the receiving, forwarding, or delivering thereof, occasioned 
 by the neglect or default of such company or its servants, notwith- 
 standing any notice, condition or declaration made and given by such 
 company contrary thereto, or in anywise limiting such liability ; every 
 sucli notice, condition or declaration being thereby declared null and 
 void. There are five provisos or limitations upon the operations of 
 the statute : ' 
 
 1. That nothing contained in the act shall be construed to prevent 
 t.hese companies from making such conditions with respect to the receiv- 
 ing, forwarding and delivering of any of the said animals, articles, goods 
 (jr things, as shall be adjudged by the court or judge before whom any 
 question relating thereto shall be tried, to be just and reasonable. 
 
 2. That no greater damages shall be recovered for the loss of or for 
 any injury done to any of such animals, beyond the sums hereafter men- 
 tioned ; that is to say, for any horse, fifty pounds ; for any neat cattle, 
 fifteen pounds per head ; for any sheep or pigs, two pounds per head; 
 unless the person sending or delivering the same to the company, shall, 
 at the time of such delivery, have declared them to be respectively of a 
 higher value than as above mentioned ; in which case it shall be lawful 
 for the company to demand and receive, by way of compensation for the 
 increased risk and care thereby occasioned, a reasonaljle percentage 
 upon the excess of the value so declared above the respective su.ms so 
 limited as aforesaid, and which shall be paid in addition to the ordinary 
 rate of charge ; and such percentage or increased rate of charge must be 
 notified in the manner prescribed in the Act of ISOD, and is made bind- 
 ing upon the company in the manner therein mentioned. 
 
 3. That the proof of the value of such animals, articles, goods, and 
 things, and the amount of the injury done thereto, shall in all cases lie 
 upon the person claiming compensation for such loss or injury. 
 
 4. That no special contract between such company and any other 
 parties respecting the receiving, forwarding or delivering of any animals, 
 articles, goods, or things as aforesaid shall be binding upon or affect 
 any such party unless the same be signed by him or by the person de- 
 livering such animals, articles, goods or things respectively for carriage. 
 
 5. That nothing contained in the act shall alter or affect the rights, 
 privileges or liabilities of any such company under the prior act of 1830, 
 ■with respect to the articles mentioned in that act.^ 
 
 1 17 and 18 Vict. Ch. :)1, A. D. 1854. 
 
 ' We have referred to the first part of this statute, ante, §§ 519, 520; we give an 
 
Common Carriers. 431 
 
 § 557. Without undertaking to review tlie English decisions under 
 these statutes, it is proper to observe that tlie later statute contains 
 some provisions not found in the first. E. g., it declares a rule of lia- 
 bility for any loss of, or injury to animals, goods or things, by the 
 neglect of or default of the carrier company, in spite of any notice or 
 condition given or imposed by them ; it then allows, in express terms, 
 the carrier company to prescribe such conditions with respect to the 
 receiving, forwarding and delivering animals, goods and things as shall 
 be adjudged by the court to be just and reasonable ; and it requires spe- 
 cial contracts for the conveyance of these different kinds of property to 
 be signed by the party delivering the same. 
 
 ■ The statute was enacted to correct certain abuses practiced by the 
 carrier companies, under the guise of contracts, imposed upon customers 
 by the use of special notices and tickets,^ — contracts that were some- 
 times established by proving that the company had given to the party 
 delivering the property a written notice or ticket specifying the terms 
 on which they received and conveyed the same. And these contracts 
 often went so far as to exempt the carrier company from liability for 
 losses and injuries caused by the culpable negligence of its agents and 
 servants ; and were held binding on the parties to them.^ 
 
 One purpose of the statute evidently was, to prevent the carrier from 
 imposing contracts or conditions of this description upon unwary cus- 
 tomers ; and another was to protect all customers against the arrogant 
 demands of the carrier. The statute annuls all notices given by rail- 
 way and canal companies, limiting their liability as carriers ; and it does 
 not prevent them from entering into special contracts for the carriage 
 of goods, provided the conditions contained in them are such as are held 
 just and reasonable by the judge or court before whom the question re- 
 lating thereto is tried, and provided the contract is signed by the party 
 delivering the goods to be carried. All parts of section seven of the 
 act, are read together ; and the conditions therein mentioned limiting 
 the carriers' liability, must be just and reasonable in the opinion of the 
 
 abstract of the statute. It covers all domestic animals, including dogs. Harrison v. 
 London, Brighton & South Coast K. Co., 2 B. & S. 122. 
 
 1 York, Newcastle & Berwick E. Co. v. Crisp, 14 C. B. 52V; Hughes v. Great West- 
 ern R. Co., 14 C. B. 637; Slim v. Great Northern R. Co., 14 C. B. 647; Chippendale 
 Y. Lancashire & Yorkshire E. Co. , 7 Eailw. Cas. 824 ; Great Northern R. Co. v. Mor- 
 ville, 7 Eailw. Cas. 830; Show v. York & North Midland E. Co., 6 Eailw. Cas. 87; 
 13 Q. B. 347; Austin v. Manchester, Sheffield & L. E. Co., 16 Q. B. 600; 10 C. B. 454. 
 
 2 Idem; Austin v. Manchester, Sheffield & L. E. Co., 10 C. B. 454; Carr v. Lanca- 
 shire & Yorkshire R. Co., 7 Exch. 707; 7 Eailw. Cases, 426; Walker v. York & North 
 Midland E. Co., 2 Ellis & Bl. 750. 
 
432 Law of Bailments. 
 
 court, and they must be embodied in a special contract in writing, 
 signed by the sender of tlie goods. ^ Tlie statute must be complied 
 with, the conditions must be contained in the contract, and the con- 
 tract must be signed.^ 
 
 What are just and reasonable conditions, under the statute ? These 
 following conditions have been adjudged just and reasonable, when em- 
 braced in a contract for the conveyance of ordinary goods and chattels : 
 " The company will not be answerable for the loss of goods untruly or 
 incorrectly described ; no claim for loss will be allowed unless made 
 within seven days after the time when the goods should have been de- 
 livered ; " ^ and a condition that no claim for damage will be allowed, 
 unless made within three days after the delivery of the goods ; ' and a 
 condition that the company will not be liable for damages arising from 
 the loss of a market, in consequence of delay in the transit ; ^ and a con- 
 dition that the comjDany will not be liable for the loss of goods, however 
 caused, when carried at special mileage rates." The following condi- 
 tions have been held unjust and unreasonable; namely, a condition that 
 the company will not be accountable for the loss, Uetention or damage 
 of any package insufficiently or improperly packed ; ' and a condition 
 that the comjpany will not be responsible for the loss of, or injury to 
 any marbles unless insured according to their value ; ° and conditions 
 exempting the company from liability for loss of, or injury to cattle 
 and horses, not caused by the negligence of its agents and servants. 
 
 § 558. Congress has declared by statute that where the shipper of 
 certain specified articles, contained in a parcel or package or trunk, shall 
 lade the same as freight or baggage on a vessel, without at the same 
 time giving to the master, clerk, agent or owner, a Mritten notice of the 
 triie character and value thereof, and having the same entered on the 
 bill of lading therefor ; the master and owner shall not be liable as car- 
 riers thereof in any form or manner, and shall not be liable for such 
 
 1 Simons v. Great Western E. Co., 18 C. B. 80.5; Peep v. North Staffordsliire R. Co., 
 10 H. L. Cas. 474. 
 
 - Aldrich V. Great Western R. Co., 1.5 C. B. N. S. 582; M'Manus v. Lancashire & 
 Yorkshire E. Co., 4 H. & N. SSt; Lewis v. Great Western E. Co., 5 H. & :N". 867. 
 
 8 Lewis V. Great Western E. Co., 5 H. & N. 867; see Knell v. U. S. & Brazil S. Co.. 
 1 .Jones <t Spencer, 42:], 4:!S. 
 
 * Simons v. Great Western E. Co., 18 C. B. 805. 
 
 s Beal V. South Devon E. Co. , 3 H. & C. 3:57 ; 5 H. & N. 875 ; White v. Great Western 
 E. Co., 2C. B. X. S. 7. 
 
 <■' Simons V. Great Western E. Co., 18 C. B. 804. 
 
 ' Idem; and Garton v. Bristol & Exeter E. Co., 1 B. & S. 112. 
 
 8 Peek V. North Staffordshire E. Co., 1 Ellis, Bl. & El. 9.58; S. C. 10 H. L. 47.3; 4 
 Best & Smith (Am. Ed.), 100.5. 
 
Common Caeeibrs. 433 
 
 goods beyond the value and according to the character thereof so noti- 
 fied and entered.! The statute also limits the liability of the owner of 
 any vessel for embezzlement, loss or destruction of any property, goods, 
 or merchandise shipped or taken on board, or for any loss, damage or 
 injury or forfeiture occasioned or incurred, by collision or otherwise, 
 without his privity or knowledge, to the amount of his interest in the 
 vessel, and her freight then pending. In order to protect the ship- 
 owner and secure this interest to the freighters and owners of the goods 
 in proportion to their respective losses, the statute allows the owner of 
 the vessel or the owner of any part of the goods to take the appropriate 
 proceedings in any court of competent jurisdiction ; it permits the owner 
 of the vessel to discharge himself from liability for such losses by trans- 
 ferring his interest in the vessel and freight to a trustee to be appointed 
 by the court, to act for the persons legally interested ; and it declares 
 that the charterer of any vessel, who mans, victuals, and navigates it at 
 his own expense, shall be deemed the owner, within the exemption given 
 by the statute ; and that the vessel shall be liable as if navigated by 
 the actual owner.^ The statute does not otherwise limit the ship- 
 owner's liability ; and it is not to be construed to take away or effect 
 the remedy to which any party is entitled against the master, oificers 
 or seamen, for or on account of any embezzlement, injury, loss or 
 destruction of merchandise or property put on board the vessel, or on 
 account of any negligence, fraud or other malversation of these persons ; 
 and the statute does not lessen or take away any responsibility to which 
 any master or seaman is legally liable. It is also to be noticed that the 
 limitation of liability does not apply to the owners of any canal-boat, 
 barge, or lighter, or to any vessel used in rivers or inland navigation ; ' 
 and that it does not exempt the owner from liability for losses or ' in- 
 juries caused by his own misconduct or neglect. 
 
 § 559. The act of Congress limiting the liabihty of ship-owners, em- 
 
 1 R. S. of TJ. S. 831, 832. These are the articles specified in the statute, viz. — Platina, 
 gold, gold dust, silver, bullion, or other precious metals, coins, jewelry, bills of any 
 bank or public body, diamonds, or other precious stones, or any gold or silver in a 
 manufactured or unmanufactured state, watches, clocks, or time-pieces of any descrip- 
 tion, trinkets, orders, notes or securities for payment of money, stamps, maps, writ- 
 ings, title-deeds, printings, engravings, pictures, gold or silver plate or plated articles, 
 glass, china, silks in a manufactured or unmanufactured state, and whether wrought 
 up or not wrought up with any other material, furs, or lace, or any of them contained 
 in any parcel or package or trunk. The enumeration, now much broader than the 
 Act of 1851, is almost the same as that contained In the English statute of 1830. 
 Ante, § .5.5.5, and note. See Wheeler v. O. S. K. Co., 125 N. T. 1-55. 
 
 2 R. S. of U. S. §§ 4283, 42S4, 42S5, 4286. 
 
 » R. S. of V. S. §§ 4287, 4289: ante, § 543, relating to losses by fire. 
 
 28 
 
434 Law op Bailments. 
 
 bodies the principal features of prior English statutes ; ^ and its object 
 is to exempt the owners of shii^s from the onerous liability under which 
 they were held by the common law for the acts or neglects of their 
 agents and servants or third persons, without their knowledge or con- 
 currence ; and leave them liable for losses arising from the misconduct 
 or negligence of their agents and servants, or from colhsions or other 
 casualties excepting fire, to the extent of their interest in the ship and 
 the pending freight. "We have seen that they are not liable under the 
 statute for losses by fire, unless the same are caused by their design or 
 neglect ; and that they are thus liable for losses arising from fire, occur- 
 ring from their neglect.^ And we find that the neglect of the president 
 and cUrectors of a corporation, owning a ship, is to be regarded as the 
 neglect of the corporation itself, these officers not being merely agents 
 or servants of the corporate body.' 
 
 The statute applies to the owners of vessels navigating the Northern 
 Lakes and the river St. Lawrence, forming the boundary between the 
 States and the possessions of Great Britain ; and Long Island Sound.^ 
 It covers losses caused by a collision, occurring in consequence of the 
 inattention or negligence of the master and servants on board. But in 
 order to secure the protection of the statute, a party interested must 
 initiate proceedings in a competent court, namely, in the United States 
 District Court acting as a court of admiralty ; and the ship-owner must 
 make the assignment required by the statute, or perform some equiva- 
 lent act, such as having his interest appraised and brmging the monej- 
 into court. Omitting to take any proceeding, he is liable to an action 
 
 1 See Act of Congress of 1851, Chap. 4?,, § 2; and R. S. of U. S. 8.31, 8.32; Stat, of 
 1871, Chap. 100, § (jO; V. S. Rev. St. § 4281; also 7 George II. A. D. 1734; 26 
 George III. A. D. 1780; .5.3 George III. A. D. 1813; and statutes of Mass. and Maine, 
 enacted as early as 1818 and 1821. The Bebecca, Ware, 187, 194; see Merchants' Ship- 
 ping Act, 1854, and Amendment Act, 1862, applied in London & S. Western R. Co. 
 V. James, 4 English (Moak), R. 800. 
 
 2 Ante, § 543; Ejiowlton v. Providence <t X. Y. Steamship Co., 53 ?r. Y. 70; Nor- 
 wich Co. V. Wright, 13 Wallace, 104; New York Cent. R. R. Co. v. Lockwood, 17 
 Wallace, 357; Hill Manuf. Co. v. Providence, etc.. Steamship Co., 113 Mass. 495. 
 The act affects the liability of the ship-owner n.s carrier but not as bailee for hire. 
 Wheeler v. O. S. N. Co., 125 N. Y. 1.55. 
 
 3 Phila. Wilm. & Baltimore R. v. Quigley, 21 How. U. S. 202, 210; Gilman v. Eastern 
 E. 13 Allen, 4-33, 441; Hill Manuf . Co. v. Prov. & N. Y. Steamship Co., 113 Mass. 
 495. 
 
 * Moore v. American Transp. Co., 24 How. U. S. 1; Knowlton v. Providence & ?». 
 Y. Steamship TV.., ;!:! N. Y. Superior Ct. 370; 53 N. Y. 76. In Baird v. Daly, 4 Lan- 
 sing, 426, the transaction occurred on the St. Lawrence, and the opinions rather 
 assume that the statute applies. 
 
Common Cauriees. 435 
 
 in a State court ; ^ and it is adjudged that the jurisdiction of a State court 
 over an action commenced against a ship-owner for damages caused by 
 his neglect, will not be affected by a subsequent suit commenced in a 
 federal court.^ While the statute of the United States confers exclusive 
 admiralty and maritime jurisdiction upon the District Courts, it reserves 
 to the suitor the option of seeking redress at common law, even where 
 his right is based upon a State statute." 
 
 When the owners of a vessel, which by a collision without fault on 
 their part causes injury and loss to the goods on board and to the other 
 vessel and cargo, take proceedings in the proper court, and have their 
 interests appraised and the value brought into court, the amount, being 
 insufficient to pay all the damages, will be apportioned jjro rata amongst 
 the owners of the injured vessel and of the cargoes of both vessels in 
 proportion to their respective losses.^ But neither the owner nor the 
 charterer of a vessel can escape liability, where he negligently runs 
 down another vessel.^ 
 
 § 560. It may be safely assumed that a carrier cannot limit his lia- 
 bility by a mere notice, public or private, of the terms on which he re- 
 ceives and carries goods or property ; inasmuch as it cannot be presumed 
 that the owner delivering the goods or property intended to waive his 
 legal rights ; the presumption being quite as strong that he intended to 
 insist upon them." The notice is at mi ist only a proposal ; it does not 
 bind the person delivering the goods, unless he assents to the terms pro- 
 posed to him. The delivery of a receipt, check, or ticket, with a notice 
 indorsed upon it, does not of itself create or imply a contract on the part 
 of the person receiving it. A ticket is not regarded as a contract ; it is 
 treated as a receipt, it serves as a token, a permit to indicate the bearer's 
 right to be received on board the car or vessel.' It may be, and often 
 
 1 Norwich Company v. Wright, 13 Wallace, 104; see rule 54 in admiralty, in same 
 volume. 
 
 2 Hill Manuf. Co. v. Prov. & N. Y. Steamship Co., 113 Mass. 495; Knowlton v. Prov. 
 & ^. T. S. S. Co., 33 Super. Ct. 370; S. C. 53 N. T. 76. 
 
 3 Dougan v. Champlain Transp. Co., 6 Lans. 430; S. C. 56 N. T. 1; Chase v. The 
 Amer. Steamhoat Co., 9 E. I. 420; S. C. 16 Wallace, 522. 
 
 * Norwich Co. v. Wright, 13 Wallace, 104. 
 
 s Thorp V. Hammond, 12 Wallace, 408. 
 
 8 Camden E.v. Belknap, 21 Wend. 354; Clark v. Faxton, 21 Wend. 1.53; N". J. 
 Steam Nav. Co. v. Merchants' Bank, 6 How. U. S. 344; McMillan v. Michigan S. E. 
 E. Co. 16 Mich. 79; Henderson v. Stevenson, 13 English (Moak) E. 141, 152, note; Dak. 
 Civ. Code, § 1261. 
 
 ' Quimby v. Vanderhilt, 17 K. T. 306. Eawson v. Pennsylvania E. E. Co., 48 IST. T. 
 212; Blossom v. Dodd, 43 N". Y. 264; Isaacson v. Nei\' York r'ent. & H. E. R. E. Co. 
 94 N. Y. 278, 286; Kansas City, etc., E. E. Co. v. Eodebaugh, 38 Kansas, 45; Mau- 
 ritz V. N. Y. L. E., etc., E. E. Co., 23 Fed. Eep'r, 705. 
 
43(3 Law of Bailjients. 
 
 is considered as a part of the contract ; e. g., where it is negotiated for on- 
 special terms.^ But it does not so emhody the contract, as to exclude 
 other evidence of its terms. To give it eifect as evidence of a contract, 
 it must be proved that the party receiving it, assented to the conditions 
 indorsed upon it.'^ The same rule has been applied, where the carrier 
 delivered to a passenger a card or check for his baggage, having these 
 words with others indorsed upon it : " Liability limited to $100, except 
 by special agreement to be noted on this card." ^ Xotices of this kind, 
 printed in small type, on the side or back of a receipt or card for bag- 
 gage, do not form a part of tlie contract.'' A ticket with a like limita- 
 tion indorsed upon it, in the English language, delivered to a German 
 who does not understand the language, does not charge him with 
 knowledge of the proposed limitation ; and his assent cannot be implied ; 
 the notice must be brought to his knowledge.^ There must be evidence 
 given, from which the party's assent may be inferred.^ 
 
 § 561. On the other hand, taking from the carrier a receipt for goods 
 in the nature of a bill of lading, embodying a contract specifying the terms 
 on which they are to be carried and delivered, does bind the party deliv- 
 ering the property.' In the absence of fraud, concealment or improper 
 practice, the presumption is that the party taking the receipt, assents^ 
 to its terms limiting the carrier's common law liability.' He is supposed 
 to know, and is chargeable with knowledge of the contents of the receipt ; 
 
 1 Bissell V. X. Y. Central E. K. Co., 25 N. T. 442; Wells t. X. Y. Prntral R. R. Co., 
 24 N. Y. 181 ; Perkins v. Central K. I!. Co., 24 N. Y. IIMI ; Wells v. X. Y. Steam Xa¥. 
 Co. 8 N. Y. 375. 
 
 2 Nevins v. The Bay State S. Co., 4 Bosw. 225; McCotter v. Hooker, 8 X". Y. 497; 
 Sunderland v. Westcott, 2 Sweeney, 2G0; Lake Shore & JI. S. Ry. Co. v. Davis, 16 
 ni. App. 425. 
 
 2 Prentice v. Decker, 49 Barb. 21; Brown v. Eastern R. E. Co., 11 Cush, 97; Lim- 
 burger v. Westcott, 49 Barb. 283; 34 How. Pr. 421; Parker v. Souiheastern 1!. '' ., 1 
 C. P. D. 418; Harris v. Great Western E. Co., 17 English (Moak) R. 1.56; Grossman 
 V. Dodd, 63 Hun, 324; Isaacson v. New York. Cent. & H. R. R. R. Co. 94 X^ Y. 278; 
 Madan v. Sherard, 73 X"". Y. 329; Woodruff v. Sherrard, 9 Hun, 322. 
 
 1 Blossom v. Dodd, 43 N. Y. 2i;4. 
 
 ^ Camden, etc., E. R. Co. v. Baldauf, 16 Penn. St. 67; see Fibel v. Livingston, 64 
 Barb. 179. 
 
 ^ Verner v. Sw^itzer, 32 Penn. St. 20S; Farmers', etc.. Bank v. Champlain Transp. 
 Co., 23 Yt. 186. Xo contract arises as a matter of law from such receipt. The car- 
 rier in order to relieve himself from liability must establish a contract. Grossman v. 
 Dodd, 63 Hun, 324; Madan v. Sherard, 73 X. Y. 329. 
 
 ' Long V. X. Y. Central E. E. Co., 50 N. Y. 7i1; Dorr > . X^". .T. Steam Xav. Co., 4 
 Sandf. 136; S. C. 11 N. T. 485; Harris v. Great Western E. Co., 1 Q. B. D. 515; Adams 
 Ex. Co. V. Haynes, 42 111. 89. 
 
 'Belger v. Dinsmore, 51 Barb. 69; S. C. 51 N. Y. 166; Collender v. Dinsmore, 
 55 N. Y. 200 ; Kirkland v. Dinsmore, 62 N. Y. 171. 
 
Common Caerieks. 437 
 
 and where he takes it without objection, he is presumed to liave assented 
 to the conditions prescribed in it, qualifying tlie carrier's liabilitj'." 
 Thus, a receipt embracing these terms is held operative and valid, like 
 a bill of lading : " It is further agreed, and is a part of the consideration 
 of this contract, that the Adams Express Company are not to be held 
 liable or responsible for the property herein mentioned for any loss or 
 damage arising from the dangers of railroad, ocean, steam or river 
 navigation, leakage, fire, or from any cause whatever, unless specially 
 insured by them and so specified in this receipt; which insurance shall 
 constitute the limit of the liability of the Adams Express Company in 
 any event ; and if the value of the property above described is not 
 stated by the shipper, the holder hereof will not demand of the Adams 
 Express Company a sum exceeding fifty dollars for the loss or detention 
 of, or damage to, the property aforesaid (receipted in the first para- 
 graph)."^ The contract is evidently designed to protect the carrier 
 to the same extent and in the same manner as the English statute 
 relating to parcels of great value in small compass.^ Its terms relieve 
 the carrier from liability for any loss or damage, unless the value of the 
 goods is stated by the shipper, and the goods insured, and that fact 
 stated in the receipt ; and it is clear that the statute referred to relieves 
 the carrier from liability for loss or injury to any of the specified articles, 
 notwithstanding the injury or loss is occasioned by his servant.* And 
 it is adjudged in this State that the last clause of the contract above 
 
 1 Grace v. Adams, 100 Mass. 560; Van Goll v. The S. E. R. Co., 104 Eng. Com. 
 Law E. 75; Fibel v. Livingston, 64 Barb. 169; case of a receipt given to a Gei-man 
 not mucli acquainted with the language. It is a general rule that where goods are 
 delivered to a carrier for transportation, and before the goods are shipped, a bill of 
 lading is delivered by him to the shipper, the latter is bound to examine it and ascer- 
 tain its contents, and if he accepts it without objection he is bound by its terras and 
 cannot set up ignorance of its contents or resort to prior parol negotiations to vary 
 them. Guillaume v. General Transp. Co., 100 N". T. 491; Germania Fire Ins. Co. v. 
 Memphis, etc., E. E. Co., 72 N. T. 90; O'Brian v. Kinney, 74 Mo. 125; Mulligan v. 
 111. Cent. Ey. Co., 36 Iowa, 181; St. Louis, Kans. City & N". E. E. Co. v. Cleary, 77 
 Mo. 634. 
 
 But this rule does not apply where there was a parol contract which had been acted 
 on and the goods had been shipped under it before the bill of lading was delivered to 
 the shipper. Bostwick v. Baltimore & Ohio E. E. Co., 45 N. Y. 712; Guillaume v. 
 General Transp. Co., 100 IST. T. 491; Wheeler v. IST. B. cS; C. E. E. Co., 115 U. S. 29; 
 Swift V. Pacific Mail Steamship Co., 106 K. Y. 206; Louisville, etc., E. E. Co. v. 
 Meyer, 78 Ala. 597; American Exp. Co. v. Spellman, 90 HI. 455; Jennings v. Grand 
 Trunk Ey. Co., 127 N. Y. 438; Park v. Preston, 108 IST. Y. 434. 
 
 2 There are other clauses in the contract; and the above only are adjudged valid in 
 Magnin v. Dinsmore, 56 N. Y. 168. 
 
 3 Ante, § 555. 
 
 * Hinton v. Dibblns, 2 G. & D. 36. 
 
438 Law of Bailments. 
 
 quoted, does not exempt the carrier from losses occurring througli liis 
 negligence ; and that the limitation of damages to the sum of fifty 
 dollars does not apply to these losses.' The language is very broad, 
 hut it does not in terms cover losses by negligence ; and under the 
 usual rule of interpretation, the terms are to be taken most strongly 
 against the party whose language they are.^ 
 
 § 56i. The freedom of contract has been carried so far in England * 
 and in this State, as to uphold the carriers' contract exempting him 
 from liability beyond a fixed sum, for losses occurring through his 
 negligence ; * and yet we find the courts holding conservatively that a 
 contract of this kind shall be permitted to exempt a carrier from losses 
 occasioned by his negligence, only in compliance with its express 
 terms ; ^ and that the carrier must give some account of the goods ; » 
 unless the contract, or the evidence in the action, leaves the burden of 
 proof with the plaintiff.' 
 
 It is to be observed that contracts exempting carriers from liability 
 for losses and injuries caused by their own negligence, would operate 
 to suspend the obligation of diligence which the law prescribes as 
 governing the relation of the parties to each other ; and that these con- 
 tracts are not therefore in harmony with sound public policy. On the 
 other hand, the courts of England and of this State permit the carrier 
 to exempt himself by an express contract from liability for damages 
 resulting from negligence on the part of his servants, agents, and 
 employees, without regard to the degree of the negligence ' — a rule 
 
 1 Magnin v. Dinsmore, .'JG N. T. KiS. 
 
 2 ff estcott V. Fargo, 6 Lansing, .319; Oppenheimer v. The U. S. Express Co., 9 
 Albany Law Journ. 187; 56 N. Y. 174. 
 
 8 Can V. LancasMre & Yorkshire K. Co., 7 Excli. 707; 7 Eailw. Cas. 420. 
 
 * Belger v. Dinsmore, 51 X. Y. 10(;; Steers v. Liverpool, Xew York & P. Steam S. 
 Co., o7 X. Y. 1; Magnin v. Dinsmore, supra; Cragin v. X. Y. Central E. E. Co., .51 
 N. Y. 61. 
 
 5 Stein weg v. Erie Railway, 43 N. Y. 123 ; Guillaume v. Hamburg & Amer. Packet 
 Co., 42 N. Y. 212; Lamb v. Camden & Amboy Co., 46 X". Y. 271; Bostwick v. Balti- 
 more & Ohio R., 45 X. Y. 712; Mynard v. Syracuse, etc., R. R. Co., 71 X. Y. 1811; 
 Nicholas v. X. Y. C. * H. E. E. E. Co., 89 X". Y. 370; Jennings v. Grand Trunk Ey. 
 Co., 127 N. Y. 438; Holsapple v. Rome, W. & O. E. E. Co., 86 X. Y. 275; Kenney v. 
 ISr. Y. C. & n. R. E.E. Co., 125 X. Y. 422; Canfleld v. Baltimore & O. E. R.Co., Vi 
 X. Y. 532. 
 
 6 Steers v. Liverpool, X. Y. & Phila. S. Co., 57 X. Y. 1. 
 ' Cochran v. Dinsmore, 49 X. Y. 240. 
 
 8 Wells V. X. Y. C. E. Co., 26 Barb. 641 ; S. C. 24 X. Y. ISl ; Bissell v. X. Y. C. li. 
 Co., 25 X. Y. 442; Cragin v. X. Y. C. E. Co., 51 X. Y. 01, 64; 166; Lee v. Marsh, 4J 
 Barb. 102; Keeny v. Buffalo & X. Y. & Erie Co., 4 Keys, 108; 59 Barb. 104; Galliu 
 V. London ife X. Western E. Co., 12 English (Moak), 268; Carr v. Lancashire, etc., 
 E. Co., 14 Eiig. Law & Eq. 340; Austin v. Manchester, etc., E. Co., 70 id. 4.34. 
 
Common Caeeieks. 439 
 
 accepted with nnicli reluctance and frequently criticised by the court 
 that enforces it,^ and we may add, constantly qualified and restricted 
 by the interpretations ;j,iven to the contract. 
 
 For illustration : au agreement by the owners of a steamboat to tow 
 a vessel on the riyer, at the risk of the master and owner of the vessel, 
 does not, as interpreted by the courts, relieve the contractor from the 
 exercise of good faith and some diligence in the fulfillment of his con- 
 tract. The general words, " at the risk of the master and owner," are 
 understood to cover the risk of navigation, and not as giving the owners 
 of the steamboat a license to act negligently and falsely in the business.^ 
 So when the owner shipping goods releases the carrier " from liability 
 for damage or loss to any article by fire," the stipulation is made on 
 the legal implication that the carrier cannot reap the benefit of it, 
 where the loss occurs through his negligence, even by the agency of 
 fire.' The terms of exemption are to be carried into effect, without en- 
 larging their true scope and meaning.* 
 
 § 563. While the efilect and mode of enforcing contracts differ but 
 slightly in the different States, we find quite recently a decided current 
 of opinion, denying to the common carrier the right to make conditions 
 and stipulations inconsistent with the principal contract. The doctrine 
 assumes the form of these distinct propositions: 1, that a common 
 carrier cannot lawfully stipulate for exemption from responsibility, 
 when such exemption is not just and reasonable in the eye of the law ; 
 2, that it is not just and reasonable in the eye of the law for a common 
 carrier to stipulate for exemption from responsiblity for the negligence 
 of himself or his servants ; 3, that these rules apply both to carriers of 
 goods and carriers of passengers for hire, and with special force to the 
 latter ; 4, that a drover travelling on a pass, for the purpose of taking 
 care of his stock on the train, is a passenger for hire.^ 
 
 1 Stinson v. X. Y. C. K. Co., 32 N. T. 333, 331; Perkins v. N. Y. C. K. Co., 24 
 N. Y. 196; Smith v. X. Y. C. R. Co., 29 Barb. 1.S2; S. C. 24N. Y. 222. 
 
 2 Wells & Tucker v. Steam ISTav. Co., 8 I^". Y. 375; Alexander v. Greene, 7 Hill, 
 533; D. & C. Steam Towboat Co. v. Starrs, 69 Penn. St. 36; and see Canfield v. Bal- 
 timore & O. E. E. Co., 93 N. Y. 532. 
 
 3 Steinweg v. The Erie Railway, 43 N. Y. 123; York Co. v. Cent. R. R., 3 Wallace, 
 lOY. 
 
 * Gleadell v. Thompson, 56 K. Y. 194; Guillamne v. Hamburgh & Am. Packet Co., 
 42N. Y. 212; 46 X. Y. 271. 
 
 6 Railroad Company v. Lockwood, 17 Wallace, 357, 384. The opinion in this case 
 >y Mr. Justice Beadlbt contains an elaborate review of modern decisions, and his 
 conclusions were concurred in by the unanimous judgment of the court ; and were 
 afterward reaffirmed in Railroad Company v. Pratt, 22 Wallace, 123, 134. See Hender- 
 son V. Stevenson, 13 English (Moak) E. 141, and note, 1.52; Carroll v. Missouri Pacific 
 By. Co., 89 Mo. 239. 
 
440 Law of E^uljients. 
 
 ^V carrier's agreement to carry and deliver goods for hire, with a 
 stipulation on his part that he is not to be held liable for their loss b}- 
 the negligence of his servants, has on the face of it a double and doubt- 
 ful look.^ An individual would scarcely propose such a contract. " It 
 would require a man of a good deal of effrontery to ask another to m- 
 sert in his contract for performing a service, a clause permitting him to 
 be negligent in its performance, and relieving him from all liability for 
 the injuries which his gross negligence might occasion; and the man 
 who would insert such a clause in the contract would be a lit subject 
 for a committee to take charge of his person and property." '^ 
 
 1 Commonwealth v. Vt. & Jlass. E. Co., 108 Mass. 1. Here, under an indictment 
 of the railroad company for causing the death of a passenger by its gross negligence, 
 11 like stipulation for exemption was treated as a nullity. 
 
 ^ .Judge Mason, interpreting a contract to tow a boat at tlie risk of tlie owner of it : 
 s ?>f . Y. (4 Srlil.), -'Jl"), :)S0. .Judge Siiarswood tlirows the contract into this form: 
 ' ' We do not undertake to tow the boat as we ought. " 60 Penn. St. 30. 
 
 Graham i& Co. v. Davis & Co., 4 Ohio St. 2U2. The carrier may exonerate himself 
 by a special contract from liability for losses arising from causes over which he has 
 no control and to which his own fault or negligence does not in any way contribute ; 
 but he cannot relieve himself from responsibility for losses caused by his negligence 
 or want of care and skill. "The dangers of river navigation, fire and unavoidable 
 accidents excepted;" under a bill of lading containing this exception, after the 
 plaintiff proves a non-delivery of the goods, the carrier must show a loss within the 
 teiins of the exception, and that proper care and skill were exercised to prevent the 
 loss. 
 
 Cleveland, P. & A. K. Co. v. Curran, 10 Ohio St. 1 (A. D. 1800). Curran rode in a 
 car on a drovers pass, having indorsed upon it these words: " The person accepting 
 this free ticket assumes all risk of accident, and expressly agrees tliat the company 
 shall not be liable, under any circumstances, whether of negligence by their agents or 
 otherwise, for any injury to the jjerson or for any loss or injury to the property of the 
 passenger using the ticket, and agrees that as for him, he will not consider the com- 
 pany as common cavriers, or liable as sucli." Anil the court held that the stipulation 
 exempting the company from liability for negliirence, was against the policy of t]v 
 law and void. Penn. 1!. Co. v. Henderson, ol Penn. St. Ol.j. See Knowlton v. Eric 
 T,. Co., 10 Ohio St. -JCO. In Illinois (111. Central II. II. Co. v. Reed, 37 111. 484), car- 
 riers are not permitted to exempt themselves from liability, by a special contract, for 
 willful misfeasance or gross negligence by themselves or by their agents and servants. 
 
 Mann v. Birchard, 40 Vt. .320. A railway company cannot in this State so limit 
 its responsibility that it can carry freight for a reward, and at the same time not be 
 liable for a failure to exercise ordinary caie in the business. In Lancaster ( 'o. Na- 
 tional Bank v. Smith, 02 Penn. St. 47, 'j'>, the court held that a bailee cannot stipulate 
 against liability forhisown negligence; and in Wolf v. Western V. Tel. (d., 02 Penn. 
 St. S3, that a carrier may limit his responsibility by express contract, when it does 
 not cover neglect of duty. In Empire Transp. Co. v. AYamsutta Oil Co., (io Penn. St. 
 14, the court again holds that a carrier cannot by notice or limitation in a contract or 
 bill of lading, protect himself from liability for the negligence of himself or his serv- 
 ants; and in Colton v. Cleveland * Pittsburgh li. Co., 67 Penn. St. 211, it was held 
 
Common Caerieks. 44] 
 
 § 564. Under the line of English decisions giving effect to the carrier's 
 notice, prior to the statute already mentioned, the carrier was not 
 allowed to exempt himself from liability for losses caused by gross 
 negligence on the part of himself or his servants.^ And the custom was 
 to submit the question to the jury as one of fact ; '^ giving them liberty 
 
 that an exception of losses by fire in a bill of lading, did not excuse the carrier where 
 the iire occurred through, his negligence. 69 Penn. St. 3(3; American E.x. Co. v. 
 Second Nat. Bank, 69 Penn. St. 394, A. T). 1811, the doctrine is again asserted that 
 common carriers cannot so limit their liability by special notice or contract as to re- 
 lieve themselves from the consequences of their own or their servants' negligence. 
 
 In Illinois, it is adjudged contrary to good morals and public policy that common 
 carriers should be allowed to stipulate against their own gross negligence or that of 
 their employees, or their willful defaults. 111. Central R. E. Co. v. Adams, 42 111. 
 474, 4S8. They are not allowed to relieve themselves from reasonable care and dili- 
 gence. Adams Ex. Co. v. Stettaners, 61 111. 184; York Co. v. Central R. R. Co., 3 
 "Wallace, 113; Farnham .v. Camden & Amboy R. Co., 5.5 Penn. St. 58; the carrier's 
 stipulation will not relieve him from liability for actual carelessness, as where he has 
 a choice of two routes and one of them is dangerous, and he goes by that one and 
 loses the property. Ex. Co. v. Kountze, 8 Wallace, 342, 352. 
 
 School District v. B. H. & Erie R. Co., 102 Mass. 552; here the court holds that a 
 special contract to carry castings at the shipper's risk of injury during the transporta- 
 tion, does not exempt the carrier from liability for injuries to the goods arising from 
 negligence. And in the N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S. 
 344, 383, the court holds that a stipulation by the carrier that the property shall re- 
 main at the shipper's risk does not exempt the carrier from liability for willful mis- 
 conduct, gross negligence, or want of ordinary care, relating to the ship, her equip- 
 ments, and furniture, and management. 
 
 Ind., Pittsburgh & C. R. R. Co. v. Allen, 31 Ind. 394. A common carrier is not 
 allowed to contract against liability for loss arising from his ordinary negligence; the 
 stipulation is void as against public policy. He is not permitted to shield himself by 
 agreement from liability for the loss of goods arising from his own negligence, or from 
 the negligence of his agents and servants. He can no more stipulate for a slight 
 degree of negligence, than for gross negligence. Michigan S. & N. I. R. Co. v. Hea- 
 ton, 37 Ind. 448. The principal contract is not to be defeated by exceptions. Great 
 Western R. Co. v. Hawkins, 18 Mich. 427. 
 
 Sager v. Portsmouth, S. & P. & E. E. R. Co., 31 Maine, 228. The Court discusses 
 the doctrine of notice, and holds that no notice or contract will exonerate a common 
 carrier from liability for damage, occasioned by his negligence, or misconduct. In 
 Fillebrown v. The Grand Trunk R. Co., 55 Maine, 462, the doctrine of notice is 
 admitted, where the party delivering the goods assents to the terms proposed ; and 
 the court cites Buckland v. Adams Ex. Co. , 97 Mass. 125. It must appear that the 
 party delivering the goods assented to the exemption. Adams Ex. Co. v. Haynes, 42 
 111. 89. 
 
 iBlrkett v. Willon, 2 B. & A. 356; Beck v. Evans, 16 East, 244; 3 Camp. 207; 
 Bodenham v. Bennett, 4 Price, 31; Smith v. Home, 2 Moore, 18; 8 Taunt. 144; Gar- 
 nett V. tWillon, 5 B. & A. 53; Sleat v. Fagg, 5 B. & A. 342; Beckford v. Crutwell, 
 .5 C. & P. 242; Riley v. Home, 5 Bing. 217. 
 
 -Duff V. Budd, 6 Moore, 469; 3 B. & B. 177; Batson v. Donovan, 4 B. & A. 21. 
 
442 Laav op Bailments. 
 
 to hold the carrier Uable for the want of that reasonable care and skill 
 which may properly be expected from him.^ 
 
 Under the statute of 1830 the carrier is allowed to make a special con- 
 tract for the carriage of goods, with the same freedom as he might 
 prior to its passage ; '^ and there is nothing in the statute to increase his 
 freedom in the making of special contracts. He is obliged under the 
 statute to accept and carry goods when tendered to him ; ^ and he is 
 at liberty to demand full freight for their transportation accorduig to 
 their value ; and he may prescribe by express notice to the party deliver- 
 ing goods, belonging to the enumerated class, the terms on which he 
 receives them, which will amount to a special contract. Receiving goods 
 in this manner, he is held bound to take ordinary care of them.* The 
 fourth section of tlie statute, covering goods not enumerated, was in- 
 terpreted as applying only to public notices given by the carrier.^ And 
 in respect to the goods enumerated in the first section, delivered with- 
 out declaring their value and paying the insurance rates on them, the 
 carrier was exempted from liability for the loss of them through or 
 by means of any degree of negligence on the part of himself or his 
 servants.^ Under this interpretation of the statute, the English decis- 
 ions leave parties sending packages without declaring their value and 
 insuring them, without much protection ; they make the carrier liable for 
 a loss of a package by the misconduct of servants, only when the injury 
 or loss arises from the felonious act of his servant.' 
 
 § 565. From an early day the carrier has been exonerated by notice 
 and without notice, from liability for the loss of goods and parcels de- 
 livered to him in such a manner as to withdraw attention from their 
 true nature and value : as where a merchant packs a trunk with silks 
 and other fine goods of great value, and delivers it to the carrier with- 
 out calling his attention to its contents ; " or where the carrier has 
 given notice that he will not be answerable for parcels of value unless 
 entered and paid for as such, and the owner with a knowledge of this, 
 delivers a parcel containing bank notes to a large amount, without in- 
 
 1 Beal V. South Devon R. Co., 3 H. & ('. :aT; 12 "W. E. 111.5. 
 
 = Ante, § .j.-).j; 1 ^Ym. IV. >t 11 Geo. IV. Cli. 08. 
 
 3 Pickford v. The Grand Junction R. Co., S Mees and Wels. 372. 
 
 * "Wyld V. Pickford, 8 Mees. & Welsby, -143. 
 
 5 Walker v. York & North M. 11. Co., 2 EU. ^t B. I.M); 22 Eng. L. & Eq. SVi. 
 
 " Hinton v. Dibbin, 2 Q. B. 646; 2 Adolph. and Ellis, N. S. 040. Lord DkX5[AX in- 
 terprets the statute by a full consideration of the different sections, finally giving full 
 effect to the broad language of the first section. 
 
 'Section S; Hearn v. London & South W. R. Co., 10 Exch. 703; 20 Eng. L. * 
 Eq. 404. 
 
 ' Pardee v. Drew, 25 Wend. 4.50. 
 
Common Cakkiees. 443 
 
 forming the carrier of its contents ; ^ or where the owner delivers a box 
 or a vahse containing money, to a carrier without in any manner calling 
 his attention to its value, so as to insure proper care of it ; ^ or where 
 the owner delivers to the carrier a diamond pin, in a box, in such a 
 manner as to induce him to regard the contents of the box as of triflmg 
 value ; ' or where a carrier is engaged in transporting and delivering 
 letters, and receives one containing an article of special value without 
 any notice of its contents or value : * or where things of great value are 
 packed in a box so as to give the impression that it is of little value, 
 and thus delivered to the carrier.' The use of any means or artiflce of 
 such a nature as to mislead the carrier, will relieve him from any lia- 
 bility beyond the apparent value of the article. 
 
 Under a special acceptance by the carrier, limiting his liability to the 
 sum of fifty dollars unless specially insured and receipted, the owner 
 deUvering a package worth over two thousand dollars without disclos- 
 ing its contents, is not permitted to recover the value of the parcel, on 
 showing a loss of it by ordinary negligence on the part of the carrier. 
 The shipper's silence in regard to its value, on delivering the parcel, is 
 fraud in law, sufficient to preclude a recovery.* By agreeing with the 
 carrier on a limited liability, he does in effect represent the package as 
 an ordinary article ; he indicates his judgment in respect to the care 
 required in its transmission ; he treats it, he pays the charge on it as a 
 thing of little value ; and, under the circumstances, without regard to 
 his actual intent, his concealment of its value amounts to a fraud in 
 law upon the carrier.* 
 
 1 Batson v. Donovan, 4 Barn. & Aid. 21; and Marsh v. Home, 5 Barn. & Cres. 322; 
 Harris v. Packwood, 3 Taunt. 364; Levi v. Waterhouse, 1 Price E. 280. Ante, 
 §§ 529, 530. 
 
 2 Chicago & A. E. E. Co. v. Thompson, 19 111. 578. 
 ' Southern Ex. Co.. v. Everett, 51 Ga. 688. 
 
 * Hayes v. Wells, Fargo & Co., 23 Cal. 185. 
 
 ' Warner v. Western Transp. Co., 5 Eobt. 490. 
 
 * Magnin v. Dinsmore, 62]^. Y. 35. The opinion by Folgee, J., contains a full 
 review of the authorities bearing on the subject. S. C. 56 N. T. 168. Ante, § 561; 
 §§ 529, 530. It is said by Justice Hablaj^, in New York Cent. & H. E. E. E. Co. v. 
 Traloff, 100 IT. S. 24, that in the absence of legislation limiting the responsibility of 
 carriers for the baggage of passengers; in the absence of reasonable regulations upon 
 the subject by the carrier, of which the passenger has knowledge; in the absence of 
 Inquiry of the passenger as to the value of the articles carried under the name of bag- 
 gage for his personal use and convenience when traveling ; and in the absence of con- 
 duct on the part of the passenger misleading the carrier as to the value of his baggage, 
 the court cannot as a matter of law declare that the mere failure of the passenger, un- 
 asked, to disclose the value of his baggage is a fraud upon the carrier which defeats 
 all right of recovery. 
 
444 La^y of Bailments. 
 
 § 5!JG. Under ordinary circumstances, a general exemption from lia- 
 bility is not construed to exonerate a carrier from losses by negligence 
 or misconduct on the part of himself or his servants.^ Embodied in a 
 receipt given for the goods, it is to be construed most strictly agamst 
 the carrier ; ^ and where the language will permit, he is to be held 
 chargeable with losses by negligence, notwithstanding general words of 
 exemption ; as that the parcel or goods are carried at the risk of the 
 owner.^ Affirming the right of the carrier, a corporation, as the courts 
 of this State now do, to make an express contract exempting itself from 
 liability for losses occurring through the fault, negligence, or willful 
 act of its servants, agents or officers, other than directors, they do not 
 admit the carrier's right to impose its own terms, nor will they con- 
 strue any general words of exemption as covering such losses.* But 
 where the contract is fairly made, the carrier is allowed ti > stipulate for 
 exemption from loss by negligence, and to limit his liability in case of 
 loss to a given sum.'' 
 
 § 567. The carrier's liability is partly based upon the reward or com- 
 pensation paid to him for the risk which he assumes ; and in respect to 
 parcels, of generally small value, and yet occasionally covering great 
 Talues, it is but reasonable that he should l)e permitted to adopt such a 
 mode of receiving them as will limit his liability to a uniform and rea- 
 sonable sum, or disclose to him the true value of the parcel he receives, 
 and give him a reasonable price for the combined service and risk as- 
 
 1 Magnin v. Dinsmore, 56 N. T. KiS; Oppenheimer v. U. S. Express Co., 9 Albany 
 Law Journal, 187; Stedmaii v. Western Transp. Co., 4S Barb. '.<~: Hooper v. Wells, 
 Fargo & Co., 5 Am. Law. Keg. (X. H.) 16 ; Nicholas v. N". Y. C. & II. E. R. E. Co., 
 8.3 N. T. 370; Mynard v. Syraense, etc., E. E. Co., 71 X. T. ISO; Holsapple v. Eome, 
 W. & O. E. R. Co., 86 N^. Y. 27.j; Kenney v. N". Y. C. & H. E. E. R. Co., Vir, X. Y. 
 422; Jennings v. Grand Trunk Ey., 127 N. Y. 43S; Brewer v. X. Y., etc., R. R. Co., 
 124 X. Y. 59. 
 
 2 Guillaume v. Hamburg & Am. Packet Co., 42 N. Y. 212. 
 
 2 Westcott V. Fargo, 6 Lansing, 319; S. C 61 X. Y. 542; cited with approbation in 
 Magnin V. Dinsmore, supra, ."i6 X. Y. KiS, 174; School District v. B. II. ct- Erie E. 
 Co., 102 Mass. 552; X. J. Steam Xav, Co. v. Merchants' Bank, 6 How. IT. .S. 344, 383; 
 46 X. Y. 271; Knell v. U. S. & Brazil Steamship Co., 33 X. Y. S. E. (1 Jones & 
 Spencer), 423; Vroman v. Am. M. Union Ex. Co., 5 X. Y. S. C (T. & C), 22; 
 ante, § 561. 
 
 " Knell V. IT. S. & Brazil S. Co., supra; Brewer v. X. Y., etc., E. i;. Co., 124 X. T. 
 59, 62. 
 
 ^ Belger v. Dinsmore, 51 X. Y. 166; CoUender y. Dinsmore, .55 X. Y. 200; Longv. 
 N. Y. C. E. E. Co., 50 N. Y. 76). This is the rule where the rate of freight is based 
 upon the valuation agreed upon. Hart v. Pennsylvania R. E. Co., 112 U. 8. 331; 
 Squire v. Xew York Cent. R. E. Co., 98 Mass. 239, 245; Craves v. Lake Shore & 
 Mich. South. R. R. Co., 137 Mass. 33; Louisville & X. E. E. C... v. Mu'irol, 84 Ala,, 
 178; Harvey v. Terre Haute, etc., R. R. Co., 74 Mo. 53s. 
 
Common Cakkiers. 445 
 
 sumed by him. On this ground tlae early decisions gave effect to public 
 notices, published in such manner as to bring them to the knowledge of 
 the shipper ; such as notices that the carrier will not hold himself re- 
 sponsible for goods above a given sum, unless the same are entered and 
 paid for in proportion to the risk, or unless the contents of packages are 
 made known and a price paid for their insurance.^ If a party under 
 such a notice, deliver and pay the freight on a package as containing 
 two hundred pounds, and it contains four hundred and is lost, the car- 
 rier is not held liable beyond the amount for which he received com- 
 pensation ; and he should not be, where the transaction is the same in 
 substance, excluding the public notice.'' 
 
 Being obliged to receive and carry all packages and parcels that are 
 tendered to him, it is but just that the law should accord to the carrier 
 the right and the means of ascertaining the value of the package deliv- 
 ered to him for transportation. It is necessary to his safety now as- 
 it ever was ; " and there is perhaps no better mode of securing this 
 information than that now generally used by our express companies ; 
 namely, receiving and carrying parcels on a uniform scale of prices, with 
 a stipulation in the receipt given for each, limiting the company's lia- 
 bility to a fixed sum, unless the contents or value of the parcel is dis- 
 closed and the freight on it paid according to the distance and risk ; * 
 each package being treated as one article or parcel, without opening it 
 or making any examination of its contents.'' In this way the shipper 
 puts his own valuation upon the parcel when he delivers it, and is 
 limited to that amount, when after its loss he brings an action to recover 
 its value." 
 
 § 568. It has been repeatedly asserted by eminent jurists, and assumed 
 by others, that the carrier has a right to demand from his employer such 
 information as will enable him to decide on the proper amount of com- 
 pensation for his services and risk, and the degree of care which he . 
 
 1 Clay V. Willan, 1 H. Bl. 298; Yates v. Willan, 2 East, 128; Izett v. Mountain, 4 
 East, 371; Nicholson v. Willan, 5 East, 507; 62 N. Y. 35. 
 
 ^ Tyly T. Morrice, Carth. 485. 
 
 ^Eileyv. Home, 2 Moore & Payne, 341; and 5 Bing. 217, decided in November, 
 1828, about eighteen months before the passage of the act of 1830 ; 1 William IV. Cli. 
 68; ante, § 555. 
 
 < Kirkland v. Dinsmore, 62 K. Y. 171; Hoadley v. N. Tr. Co., 115 Mass. 304; Boor- 
 man V. American Ex. Co., 21 Wis. 152; Southern Ex. Co. v. Purcell, 37 Ga. 103; 34 
 Ga. 315; Meyer v. Harnden's Ex. Co., 24 How. Pr. 290. 
 
 6 Wetzell V. Dinsmore, 54 N. Y. 496. 
 
 6 Wyldv. Plckford, 8 Mees. & Welsh. 443; Bernstein v. Boxendale, 6 Com. B. (X. S.) 
 251; Henderson v. The London & N. W. R. E. Co. (Law Eep.) 5 Exch. 90; Boxendale 
 V. Great Eastern E. E. Co. (Law Eep.), 4 Q. B. 244. 
 
446 Law of Bailments. 
 
 ought to use in discharging his trust.^ The English statute relating to 
 parcels, assumes this right ; and the principle embodied m that act is 
 carried f()r\vard into the statute relating to railway and canal carriers, 
 and hito the shipping acts.^ But it is to be observed that this right to 
 demand information respecting parcels tendered for conveyance, is 
 limited to the reasonable purpose of the inquiry ; and that the carrier 
 cannot insist upon the disclosure of the contents of a parcel, as a con- 
 dition of his receiving it for conveyance.^ And as a rule, general infor- 
 mation is all that the carrier can ask for with propriety. 
 
 It is not the shipper's legal duty to volunteer a disclosure of the 
 nature or value of the goods or parcels tendered for carriage. The 
 inquiry conies properly from the carrier, under ordinary circumstances. 
 If he wishes to ascertain the extent of the risk assumed by him, he 
 should inquire at the time the goods are delivered ; and then if he is not 
 answered truly, he will have a defense.* 
 
 1 Riley v. Home, 2 Moore it Payne, :!41; '> Bing. 217, Per Best, J.; Bkonsos, J., 
 ia noUister v. Nowleu, 19 Wend. 2-14. - Ante, §§ 5.j.j, .556, 558, 559, 561-565. 
 
 3 Couch T. London A- X. W. r>. Co., 14 V. B. 255, 291. The court holds that the 
 railway company was, 1, a common carrier from London to Glasgow, j. e., to a point 
 beyond the realm, to which it carried goods; 2, that the company was a common car- 
 rier of packed parcels ; 3, that a common carrier has no general right to refuse to 
 ♦ receive a parcel tendered to him for conveyance, unless informed of the nature of its 
 contents. Jeiivis, C. J. : " With regard to goods of a peculiar value, or of a particu- 
 lar description, if their value be not disclosed at the time they are delivered to the 
 company, the law provides a remedy; the liability of the company is qualified, and the 
 party sending them is, by reason of the concealment, prevented from recovering the 
 full value of the goods." The carrier, a railway company, has no right to open a 
 parcel to ascertain whether it contains other parcels addressed to different persons. 
 Couch V. London tt X. W. E. Co., 2 C. & Iv. 7s:i; Simons v. Great Western E. Co., 
 IS C. B. 805, a carrier is not allowed to impose an unreasonable condition; and a con- 
 dition that he will not be accountable for the loss of any package insufficiently or im- 
 properly packed, is unjust and unreasonable. The carrier is liable for a refusal to 
 receive goods, where he insists upon the delivery of them and his receipt of them, 
 under such a condition. Garton v. Bristol & Ex. R. Co., 1 Best & Smith, 112. 
 
 * Brooke v. Pickwick, 4 Bing. E. 218; Phillips v. Earle, 8 Pick. 182. See New York 
 Cent. & Hudson E. R. E. Co. v. Fraloff, 100 IT. S. 24. In Walker v. .Jackson, 10 M. 
 A W. 101, Baron Pakke says: "I take it now to be perfectly well understood, accord- 
 ing to the majority of opinions upon the subject, that if anything is delivered to a 
 person to be carried, it is the duty of the person recei\:ng it to ask such questions 
 about it as may be necessary; if he asks no questions, and there be no fraud to give 
 the case a false complexion, on the delivery of the parcel, he is bound to carry the 
 parcel as it is. It is the duty of the person v\'ho receives it to ask questions ; if they 
 are answered improperly, so as to deceive him, then there is no contract between the 
 parties ; it is a fraud which vitiates the contract altogether. But in this case, if there 
 was a delivery at all of the carriage, with the jewelry in it, it was a delivery to be 
 carried for a reward, namely, five shillings." The jewelry was in the carriage, and 
 
COMMU^' CAUlilELi!-;. 447 
 
 § 5G9. Actual notice given by a common carrier to his customer, 
 specif j'ing the terms on which he receives and carries goods, becomes 
 parcel of the contract when it is proved that the property or parcel was 
 delivered upon the terms thus offered.^ And though it be not made the 
 basis of a contract, it often becomes effective to shield the carrier from 
 liability for things of special and peculiar value, not disclosed at the 
 time of the delivery ; for it appears to be agreed that the carrier may in 
 this manner require the shipper to state the nature or value of the 
 property, at the risk of having it received and carried as an article of 
 ordinary value. The carrier does not impose an illegal condition ; he 
 asks for reasonable information bearing on the transaction ; and the 
 shipper is left free to act on his own direction, accepting the legitimate 
 consequences of his conduct.'' By delivering the package or parcel, 
 without giving the information asked for, the shipper leaves it to be 
 carried, if he does not impliedly consent that it shall be carried, in the 
 usual manner ; and it may be doubted whether he can refuse all infor- 
 mation in regard to it, and compel the carrier to receive a package for 
 conveyance. Under the statute law of England he may do so, and the 
 carrier may limit his liability to a given sum.^ 
 
 § 570. Baggage. We have seen that carriers of passengers are con- 
 sidered common carriers of their baggage ; * and that a passenger can- 
 
 the owner did not inform the carrier of the fact ; and the carriage was run into the 
 water in landing from a ferryboat. 
 
 1 ]Sr. J. Steam Nav. Co. v. Merchants' Banli, 6 How. TJ. S. 344; Hollisterv. Nowlen, 
 19 "Wend. 234; Kimball v. Rut. & Bur. R. Co., 26 Vt. 247; Farmers & M. Bank v. The 
 Champlain Transp. Co., 23 Vt. 186, 205; Camden & A. R. v. Baldauf, 16 Penn. St. 
 67; Reno v. Hogan, 12 B. 3Ion. R. eS; Buckland v. Express Co., 97 Mass. 127; Fille- 
 brown t. G. T. R. R., 55 Maine, 468; Adams Ex. Co. v. Stettaners, 61 Illinois, 184; 
 B. & O. R. R. V. Brady, 32 Md. 333; Rawson v. Penn. R. Co., 48 I^". T. 21*. 
 
 2 In Cole V. Goodwin, 19 Wend. 251, 268, Mr. Justice Co wen reviews the authorities 
 and says : " So long as the printed notice of a common carrier is confined to the pur- 
 poses which I have enumerated, and others calculated to save himself, without mis- 
 chief to his customer, or for the benefit of the latter, I see no objection in principle to 
 giving it full effect. So far it is not a refusal to carry for a reasonable reward. So 
 far it is not a limitation of the carrier's liability. He merely declares to the customer 
 what is true and just: ' you know the value of your goods; I will not rummage yom- 
 parcel ; I will take your own account ; but I will not incur the responsibility of a com- 
 mon carrier unless yotir account shall prove true. If you commit a fraud or deal cap- 
 tiously or capriciously on' your own part, you cannot complain if my duty is reduced 
 to that of a mandatary.' " See cases there cited, and Wyld v. Piokford, 8 M. & W. 
 443. 3 Ante, § 530. 
 
 * Ante, §§ 502, 503, 504, 498. In this State the fare which a railroad corporation is 
 authorized to collect for the transportation of a passenger includes the transportation 
 of his baggage not exceeding one hundred and fifty pounds in weight. Laws of 1892, 
 Chap. 676, § 37. See Isaacson v. N. T. C. & H. R. R. R. Co., 94 N. T. 278. 
 
448 Law of Bailmext;^. 
 
 not charge a carrier with liability for merchandise, money or other 
 valuable things packed with and not being a legitimate part of a travel- 
 er's luggage.^ 
 
 The passenger's baggage must be delivered into the custody of the 
 carrier, in order to charge him with its safe conveyance. Nothing can 
 be more, reasonable. If a passenger choose to keep a parcel, an over- 
 coat or a traveling bag or watch in his own custody, there is no reason 
 or justice in holding the carrier responsible for its safety.^ Under 
 many circumstances his custody of the parcel exposes it to dangers 
 from which it would be free in the hands of the carrier. If a passenger 
 on a ferryboat retains a parcel in his hand, he does not expect the 
 carrier to guard it from the chance of loss by theft ; and he does not 
 when he takes passage on a steamboat or in an ordinary railway car ; and 
 since he does not entrust it with the carrier, he cannot hold him charge- 
 able with its safety, from losses arising from the presence of strangers 
 whom he cannot exclude from the conveyance. And yet the carrier 
 may be liable for the loss of such a parcel arising from the negligence 
 of his servant, when it is placed in the car or handled by him at the end 
 of the journey.' 
 
 § 571. Baggage, like other goods, is to be duly delivered to the carrier ; 
 it is to be placed within his custody in the usual and ordinary manner. 
 Under a statute of this State, prescribing the mode in which railroad 
 corporations shall transact their business, a check must be affixed to 
 each parcel of baggage delivered for transportation, and a duplicate 
 thereof given to the owner or j^erson delivering it ; if such check is 
 refused on demand the corporation is required to pay to the passenger ten 
 dollars and can collect no fare from him, or if the fare has been jpaid, 
 the conductor in charge of the train must refund it to him. Such bag- 
 gage must be delivered without unnecessary delay to the passenger or any 
 
 1 Ante, §§ 529, .>;0; C. & C. Air Line E. E. Co." v. Marcus, 38 111. 220. 
 
 2 Tower v. Utica & S. E. E. Co., 7 Hill, 47; Blancliard v. Isaacs, 3 Barb. .388; 
 Steamboat v. Vanderpool, 10 B. Monroe, ;;n2; Clark v. Burns, 118 Mass. 275; Pul- 
 man Palace Car Co. v. Pollock, 60 Texas, 120; Cai-penter v. N. T., X. H., & H. K. 
 E. Co., 124 X. T. .5.3. 
 
 3Le Conteur v. London & S. W. E. Co., 12 Jur. N". S., 266; L. E. 1 Q. B. 54; 
 S. C. B. & S., 901. The court in this case, involving a chronometer, hold that the 
 circumstances must be very strong to show an intention, on the part of a passenger, to 
 relieve the company from their ordinary liability to carry safely. In Butcher v. Lon- 
 don & South "Western R. Co. (16 Com. Bench, 13), a porter of the company took from 
 a passenger, as usual, a carpet bag (which contained a large sum of money) for the 
 purpose of securing a cab ; and having secured the cab within the station, placed the 
 bag in it, and returned for other baggage belonging to the passenger; the cab disa;i- 
 peared ; and the company was held liable for the loss. 
 
Common Cariuers. 449 
 
 person acting in his behalf at the place to which it was to be transported, 
 where the cars usually stop, or at any other regular intermediate 
 stoppmg place, upon notice to the baggage-master in charge of baggage 
 on the train of not less than thirty minutes upon presentation of such 
 duplicate check to the officer or agent of the railroad corporation or 
 of any corporation over any portion of whose road it was transported.^ 
 
 Having the right to prescribe reasonable regulations, it is quite evi- 
 dent that railroad carriers may in this State insist that all baggage 
 shall be delivered at the proper place of receiving it, a reasonable time 
 before the train is to leave ; and that each parcel of baggage shall be 
 properly checked : that they may adopt a rule to check his baggage, 
 on the passenger's showing his ticket ; and to exchange tickets with 
 connecting roads. Courts will enforce and give effect to these, and like 
 rules, for the protection of both parties.^ 
 
 In the first place, a passenger's baggage must be checked by the per- 
 son having authority to receive and check it ; ^ and his authority may be 
 proved by showing that he was accustomed to receive and check bag- 
 gage, with the knowledge of the company. A failure to give a check, 
 on request, when the baggage is delivered to the agents charged vrith 
 receiving it, will not affect a passenger's rights.* The carrier cannot 
 shield himself under his rule, that he will not be liable for baggage un- 
 less it is checked, where the parcel is received and no check given be- 
 cause the authorized agent is not there. After his agents receive it, the 
 carrier's liability commences ; quite frequently this happens some hours 
 before the transit or journey commences.^ 
 
 When baggage is left in the rooms appropriated to its reception, to 
 be afterward checked when its owner is ready to proceed on his way, 
 the corporation does not receive it as a common carrier ; they receive 
 it in the line of their business, as they retain baggage not called for 
 within a reasonable time at the end of their road, and are liable for it 
 on principle as bailees for hire.' 
 
 1 Laws of 1892, Chap. 676, § 45. 
 
 2 111. Central E. Co. v. Copeland, 24 111., 382; a railroad cannot refuse to label or 
 check baggage, and so compel a passenger to keep it in his personal care. Munster v. 
 South E. R. Co., 4 C. B. (IST. S.) 676; Davis v. M. S. & N. J. E. Co., 22 111. 278. 
 
 8 Mich. So. & Northern Ind. E. Co. v. Myers, 21 111. 627; Butler v. Hudson Eiver 
 E. Co.,.3E. D. Smith, 571. 
 
 * Freeman v. Newton, 3 E. D. Smith, 246, 251. 
 
 6 Hickox V. Naugatuck E. Co., 31 Conn. E. 281; Wood v. Devin, 13 HI., 746. 
 
 6 Ante, §§ 336, 337, 538; O'Neil v. I^^. T. C. & H. R. E. E. Co., 60 N. Y. 138. If, how- 
 ever, the baggage is delivered to the carrier for transportation and not for storage, and the 
 passenger consents to some delay for the convenience of the carrier, the latter is liable 
 as carrier for the loss of the baggage. Shaw v. Northern Pacific E. E. Co., 40 Minn. 
 
 21 
 
450 Law op Bailments. 
 
 When a passenger takes a stateroom on a steamboat and carries into 
 it items of baggage and other valuables, his relation to the carrier is 
 similar to that of a guest to an innkeeper, after he has taken a room 
 and placed his baggage in it ; and the carrier's liability is Uke that of 
 the innkeeper. The act of taking the key to a rr » mi in the mn, does 
 not charge a guest with the custody of his baggage in the room, so as 
 to discharge the innkeeper : and the same is adjudged where a passenger 
 on a steamboat receives the key to a room where he places his baggage, 
 without intending to retain the custody of his baggage to the exclusion 
 of the carrier. The key gives the passenger access to his baggage and 
 a supervision of it ; it obliges him to take some care of it ; but it does 
 not take from the master the custody and possession of the vessel, in- 
 
 144. In Kotli V. Buffalo & State Line r>. Jl. Co., 34 X. T. 'Af^; the railroad company 
 carried the passenger and his trunk from Dunkirk to Buffalo, the trimk being checked 
 and the train arriving about ten o'clock in the evening, a cold winter's night. On his 
 arrival, the passenger went directly to the house of a friend, retaining his check; and 
 it appears that the company delivered, as usual, all the baggage called for that even- 
 ing. . During the night the depot was burned, with the baggage; and It was held that 
 the company wrre. not liable. In Powell v. Myers, 20 Wend. ."j91, a passenger arriving 
 at New York about the same time in the evening by a steamboat, left his baggage on 
 board till morning, with the consent of the captain; and it was lost by a delivery on a 
 forged order. Leaving the goods in the depot over night with the carrier's consent, 
 where the owner or his agent has an opportunity to take them away in the eveniag, 
 relieves the company from the liability of an insurer. Fenner v. Buffalo & State Line 
 E. R. Co.,44X. Y. .'.:>"•>; Watkins v. N". Y. C. & H. E. E. E. Co., 16 State Eep. 592. 
 The liability of a railroad i-uinpany as carrier terminates on the expiration of a reason- 
 able time for die removal of the baggage after the arrival of the train at the place of 
 destination. Chicago, etc., E. E. Co. v. Boyce, 73111. 510; Chicago, etc., E. E. Co. v. 
 Addizoat, 17 111. App. 632. The railroad company remains responsible for baggage as 
 carrier, until the passenger has a reasonable time and opportunity to remove it, over- 
 night, where that is necessary. Dininny v. X. Y. ct X. H. E. E. Co., 49 X. Y. 54fi. 
 See Xorw.ay P. Co. v. B. >.t H. E. E. Co., 1 Gray, 203, and a special arrangement to 
 keep for some days not authorized by the company; !Mattison v. X. Y. C. E. E. Co., 
 57 N. Y. ."j">2; 70 N. Y. 3S1. Oderkirk v. Fargo, 58 Hmi, 347. If a passenger on a 
 steamboat takes a stop-over check at an intermediate station, leaving his baggage on 
 board to be carried to its destination he cannot recover its value, if while awaiting his 
 arrival, it is destroyed, without fault of the carrier, by the burning of the warehouse at 
 the place for delivery. Laffrey v. Grummond, 74 Mich. 186. 
 
 The carrier' s liability for baggage ceases after it comes to the place of destination 
 and the same is stored in a safe and secure warehouse. His liability as carrier docs 
 not cease, by his placing the baggage in an insecure room from which it is stolen— a 
 room without blinds accessible from without. Bartholomew v. St. Louis, J. & C. E. Co., 
 53 111. 227, A. D. 1870; Chicago, Eock I. & P. E. E. Co. v. Fairclough, 52 111. lOll. 
 A passenger may recover against the contracting carrier for the unexplained failure 
 of the connecting road to deliver his baggage at the jiliice of his destination. Burnell 
 V. X. Y. Central E. E. f'o,, 45 X. Y. 184; see Green v. X. Y. C. E. Co., 12 Abbott's 
 Pr. (X. S.) 473. 
 
Common CAiaaEits. 451 
 
 eluding the room given to the traveler for his special accommodation.* 
 Can the same rule be applied where a passenger secures accommoda- 
 tions in a sleeping or Pullman palace car, in charge of a porter whose 
 business it is to make up the beds at night and wait upon the passen- 
 gers ? A divided court answers the question in the negative, on the 
 implied understanding of the traveling public.'^ A carrier does not 
 undertake to carry and safely deliver the effects of travelers not de- 
 livered into his custody ; and money or other property retained in the 
 possession of the passenger by day and placed in his berth at night is 
 not in the custody of a corporation which carries and furnishes travelers 
 with berths in sleeping coaches.^ But though such corporations are 
 not insurers of property taken by th^ passenger into his berth at night, 
 they are bound to exercise a degree of care commensurate with the 
 danger to which the passenger is exposed to protect him from robbery 
 while sleeping ; ^ and where a railroad corporation contracts with a 
 parlor or sleeping car company to haul the cars of the latter over its 
 road, it is liable in the same way and to the same extent as if such cars 
 were owned by it.^ 
 
 In a situation somewhat different and yet having some analogous 
 features, namely, where a person takes passage on a steamer, among 
 the steerage passengers, and retains his trunk and fastens it under his 
 berth, the carrier, not being entrusted with the property, is not charged 
 with its safe keeping.^ The carrier has the right to appoint the place 
 of deposit, and may refuse to become responsible for goods or baggage 
 unless it be properly stored.'' 
 
 § 572. A railroad company selling through tickets over its own and 
 other roads forming a continuous line, and checking baggage through, 
 is liable for it at the point of destination. The company contracts to 
 carry the passenger with his baggage to the place for which he purchases 
 a ticket, and agrees that the baggage shall be delivered on presentation 
 
 ■" Mudgett V. Bay State Steamboat Co., 1 Daly, 151. Here the passenger's valise was 
 stolen out of liis room, properly locked. A notice posted in the steamboat that a 
 passenger must bear a loss by theft from his room is unreasonable. Macklin v. Kew 
 Jersey Steamboat Co., 7 Abbott's Pr. (N. S.) 229; Core v. Norwich & N. T. Tr. Co., 
 2 Daly, 254; 21 N. T. 111. 
 
 2 Welch V. Pullman Palace Car Co., 16 Abbott's Pr. (N. S.) 352. 
 
 = Lewis V. ISr. T. Sleeping Car Co., 143 Mass. 267; Carpenter v. N. T. N., H. & H. 
 E. E. Co., 124 N. T. 453. 
 
 * Pullman Car Co. v. Gardner, 3 Pennypacker, 78; Carpenter v. N. T., N. H. & H. 
 E. E. Co., 124 N. T. 53; Pullman Palace Car Co. v. Matthews, 74 Texas, 654. 
 
 6 Laws of 1892, Chap, 676, § 41. 
 
 6 Cohen v. Frost, 2 Duer, 335; see Tolano v. National S. Nav. Co., 5 Eobt. (N. T. 
 S. Ct.) 318. ' Van Horn v. Kermit, 4 E. D. Smith, 453. 
 
452 Laav of Bailment.;. 
 
 of the check for it.^ The corporation has the power to make a contract 
 to carry and dehver at a point beyond the termination of its road ; and 
 it may do this where it sells separate tickets issued by the several com- 
 panies constituting- the entire line. The contract may be established 
 by proving the circumstances ; the tickets being regarded as receipts, 
 or tokens, do not legally prove a succession of contracts; they are con- 
 sistent with a single contract for the entire route.^ 
 
 Are the other companies in the line also liable on the contract ? It is- 
 quite clear that they are, when they act through the same agents ; e. (j., 
 where three separate railroad companies owning distinct portions of 
 a continuous railroad between two termini, run their cars over the whole 
 road, employing the same agents to sell passage tickets and receive 
 baggage to be carried over the entire road ; the last company is liable 
 for the baggage received by the first.' Two principles must be affirmed, 
 in order to maintain this rule of liability by each of the roads uniting 
 to form a continuous line of conveyance and transportation : 1. That 
 several railroad companies may so unite in the carrying on of their 
 business as that each shall become carriers and responsible as such over 
 the roads of the other companies, and beyond their own proper terminus ; 
 and 2. That a railroad company may become liable upon the contracts 
 of its agents, and by the receipt of freight and baggage at the terminus 
 of the continuous line farthest from its own line.^ 
 
 Roads thus forming a continuous line and carrying goods and passen- 
 gers on an agreement for a division of the fare or freight received on 
 goods or from passengers carried over the several roads, do not become 
 partners, as between themselves or in respect to third persons. On a 
 through contract, the company delivering the goods is entitled to recover 
 
 1 Burnell v. N. T. V. E. K. Co., 45 ?;'. T. 184; Carey v. Cleveland & Toledo E. R. 
 Co., 29 Barb. 35; Muschamp v. Lancaster & Preston J. 1!. Co., 8 M. & W. 421; 
 ISTorway P. Co. v. Boston & Jl. E. E. Co., 1 Gray, 2(K; 111. Central E. E. Co. v. Cope- 
 land, 24 111. .'3:;2; Weed v. S. & S. E. Co., 19 Wend. 534. 
 
 = Quimby v. Vanderbilt, IT X. T. .306; 8 N. T. 37; Weed v. Saratoga & S. E. R. 
 Co., 19 Wend. 534. The power to make a through contract is generally aflBrmed. 
 Railroad Co. v. Pratt, 22 Wallace, 123; Hill Manuf. Co. v. Boston & L. E. Co., 104 
 Mass. 122; Feital v. Middlesex E., 109 Mass. 3',IS; Swiftv. Pacific Mail SteamshipCo., 
 106 N. Y. 206. 
 
 'Hart V. Eensselaer & Saratoga E. E. Co., 8 N. T. (4 Seld.), .87; McCormick w 
 Hudson E. E. Co., 4 E. D. Smith, 181. 
 
 * Carey v. Cleveland & Toledo R. E. Co., 29 Barb. 35. Judge Allen reviews in 
 this case the decisions, and aflLrms the propositions cited in the text. Burnell t. 
 N. T. C. E. R. Co., 45 N. T. 184; Schroeder v. Hudson River R. R. Co., 5 Duer, 5.5; 
 Bissell V. Michigan S. & N. Indiana R. Cos., 22 jST. T. 258, and cases there cited; 
 Buffett V. T. tt B. E. 1!. Co., 40 N. T. 168, and note on page 179; 42 Vt. 566. 
 
CoMMOisr Cakriees. 453 
 
 the freight earned on the several lines.^ And where roads connect but 
 do not form a continuous line, the practice of each to sell through 
 tickets and check baggage over both roads, imports an agency by the 
 company selling the tickets, and not a contract by the company for the 
 whole route.^ 
 
 § 573. In this State a statute takes notice of the relation existing be- 
 tween connecting railroads, allows one company to receive and contract 
 for the delivery of freight at any point on the continuous line within or 
 beyond the State, renders the company liable on the contract, and gives 
 it a remedy against the company through whose neglect or default the 
 goods are injured or destroyed.^ The statute does not apply where the 
 company first receiving the goods does not undertake to carry them to 
 
 1 Merrick v. Gordon, 20 N. T. 93; 5 Lans. 482; 2 E. D. Smitli, 187; 18 Wend. 329; 
 7 Hill, 292. In Bostwick v. Champion (11 Wend. 571), three lines of stages united to 
 form a continuous line from Utiea to Rochester, on an agreement by which the route 
 was divided into three sections, each line to be run by a party furnishing his own 
 carriages , horses and drivers at his own expense, and the fare received from passen- 
 gers after deducting tolls paid at turnpike gates, was to be divided between the three 
 lines in proportion to the number of miles run by each; and an injury having been 
 caused to a stranger by the driver on one of the lines, it was held that the stranger 
 might maintain a joint action on the case against the owners of the three lines, with- 
 out affirming that these owners were partners, as among themselves. S. C, 18 Wend. 
 17o. In Fairchild v. Slocum (19 Wend. 329), the owners of canal boats on the Erie 
 Canal formed an association with the owners of vessels on Lake Ontario, for the 
 transportation of goods from the city of New York to Ogdensburg on the St. Law- 
 rence and other places ; and all the parties were held liable for a loss on the lake, 
 though some of the parties had no interest in the vessel that was lost. S. C. 7 Hill, 
 292. 
 
 Railroads uniting to form a continuous line and dividing receipts in proportion to 
 the distance covered by each road, are not regarded as partners; t-. g., where the 
 roads appoint an agent to sell through tickets and for intermediate places, and the 
 proceeds are divided among the several companies each month, according to the re- 
 spective amounts of their established rates of fare. Straiton v. N. T. & N. H. R. Co. , 
 2 E. D. Smith, 184; ^tna Ins. Co. v. Wheeler, 5 Lans. 480, 482; S. C. 49 N. T. 616. 
 The question was fairly presented and passed upon by the Court of Appeals, in the 
 case above cited ; Merrick v. Gordon, 20 N. T. 93 ; where a firm of carriers upon the 
 canals agree with a firm of carriers upon the Great Lakes for a division in fixed pro- 
 portions of the total freight received for the carriage of goods over the united routes 
 or portions thereof. The opinion distinguishes this case from that of Champion v. 
 Bostwick, where the whole earnings were divided in proportion to distance, the re- 
 ceipts from passengers traveling over only one route, as well as from those traveling 
 over the three united. The distinction is quite clear, if not very broad. 
 
 2 Milnor v. New York & N. H. R. R. Co., 53 N. Y. 363. 
 
 s Laws of 1892, Chap. 676, § 48; Burtis v. Buffalo & State Line R. Co., 24 N. Y. 
 269. The contract is valid independent of the statute ; at least the carrier is liable. 
 Buffett V. Troy & Boston R. R. Co., 40 N. Y. 168; Jennings v. Grand Trunk By. Co., 
 127 N. Y. 438. 
 
4'A Law of Bailments. 
 
 their final destination ; '■ and it does not assume to render tlie second or 
 third company forming the continuous line, liable to the owner for dam- 
 ages arisuig to the goods while m the hands of the first or a prior car- 
 rier. As construed, the statute is in one sense declaratory of the com- 
 mon law, and leaves the intermediate carrier liable only as an ordinary 
 carrier for loss or damage arising while the goods are in his possession.^ 
 If the first carrier makes a contract for the entire route, he is not 
 allowed to escape his liability on the ground that a connecting carrier 
 fails ui his duty, and delays the transportation." The rights of the par- 
 ties are fixed by the contract ; and it is held that a connecting carrier 
 receiving goods from the contracting carrier, under a through contract, 
 is entitled to the exemption stipulated for in the contract, as from loss 
 by fire. The last and the intermediate carriers are regarded as allies, 
 aiding the contracting carrier in the fulfillment of his contract.* 
 
 Under a through contract by the first carrier, the intermediate carrier 
 is not on principle liable on the contract ; and is chargeable as a carrier 
 by virtue of his occupation. Hence where a passenger purchases a 
 ticket entitling him to ride over diiferent lines of road, each road is lia- 
 ble for a loss of his baggage while in its possession ; and the passenger 
 not suing on the contract, cannot recover for a loss of his baggage against 
 the last road where it is shown that it did not come into its custody.^ 
 
 A contracting carrier, held liable for a loss of goods under a through 
 contract, has his remedy over against the connecting line or road by 
 whose neglect or default the loss occurred." In the absence of a 
 through contract, no such liability can arise ; one carrier not being lia- 
 ble, j)n'm<( fade, for a loss of goods occurring while they are in the 
 hands of another carrier.' 
 
 1 Boot V. The Great Western E. R. Co., 4.j X. Y. .524. 
 
 - Smith V. X. Y. Central li. r>. Co., 4:5 Barb. 225. A contrary opinion is expressed 
 by the General Term in Root v. Great Western R. E. Co., 2 Lansing, 199; S. C. re- 
 versed as above cited, 45 N. Y. .524. 
 
 3 Condict V. Grand Trunk R. Co., 54 N. Y. 500; Beard v. .St. Louis, etc., R. E. Co., 
 79 Iowa, 52T; Washington v. Raleigh & G. E. E. Co., 101 X. C. 2:]'.); Ilalliday t. St, 
 Louis, etc., Ey. Co., 74 Mo. 159; Clyde v. Hubbard, 88 Pa. St. 358; Xewell v. Smitli, 
 49 Vt. 255. 
 
 *Maghee v. Camden & Amboy E. E. Co., 45 X". Y. 514; Manhattan Oil Co. r. 
 Camden & Amboy E. & Tr. Co., .54 X. Y. 197. See Irwin v. X. Y. C. E. Co., 1 T. 
 & C. 473; S. C. 59 X. Y. 053; Faulkner v. Hart, 82 X. Y. 413, 422; Kiff v. Atchison, 
 etc., R. E. Co., 32 Kansas, 2(;3. The rule applies only under a through contract; 
 ^tna Ins. Co. v. Whnlrr, 5 Lans. 480; S. C. 49 X. Y. 616. 
 
 5 Chicago & Rock Isl.md E. Co. v. Fahey, 42 111. 81. In Condict v. Grand Trunk 
 E. Co., the action was on the contract — a special contract for the transportation of the 
 goods to Chicago— 54 X. T. 500. See Anchor Line v. Dater, 68 111. 369. 
 
 « Chicago & X. E. Co. v. Northern Line Packet, 70 111. 217. 
 
 ' C, H. & D., &D. & M. E. Co. V. Pontius & Eichmond, 19 Ohio St. 221. 
 
Common Caeeiers. 455 
 
 § 574. A check for baggage is a kind of receipt ; it is like a ticket 
 given to a passenger as an evidence of his right to a place in the con- 
 veyance. A ticket is evidence that a passenger has paid his fare, and 
 where on its face it entitles the holder to travel over several lines of 
 road, a recognition of the' ticket by one of the roads as valid, is. proof 
 that the company is liable for the passenger's baggage.^ The check is 
 given for the purpose of relieving the passengers from all care and super- 
 vision of his baggage while on the journey ; and where it is the custom 
 of a road to clieck baggage on the passenger's showing his ticket, the 
 check is prima facie evidence of a delivery of the baggage and that the 
 party receiving it was a passenger.^ The possession of a ticket is also 
 presumptive evidence that the holder has paid the regular fare on the 
 route on the day of its date.^ 
 
 The non-delivery of baggage at the end of the journey, when called 
 iav prima facie proves a loss of the same by the carrier's negligence.* 
 Circumstances, like the passenger's lameness, may excuse delay in call- 
 ing for baggage .° 
 
 § 575. From an early day carriers have been accustomed to make 
 regulations limiting the amount and weight of baggage to be carried 
 with a passenger ; ° and while the custom does not appear to be general 
 in respect to the conveyance of passengers by land, it appears to be 
 well settled that a carrier may adopt a tariff of prices, under which he 
 charges a passenger without baggage a specific sum, a passenger with 
 baggage worth a hundred dollars an additional amount, a passenger 
 with baggage worth five hundred dollars a further sum, and so on, 
 increasing the charge with the increase in the risk and expense of the 
 transportation ; taking care that the charges be justly and reasonably 
 proportioned to the risk assumed and service rendered.' It appears 
 that steamers carrying passengers to Europe, make an agreement limit- 
 ing the space to be occupied, as well as the value of the baggage, for 
 
 1 Chicago & E. I. E. Co. v. Fahey, 52 111. 81 : Merrill v. Grinnell, 30 N. T. 594. 
 
 2 Davis V. M. S. & Ind. E. Co., 22 111. 278; 111. Central E. Co. v. Copeland, 24 HI. 
 332; Davis v. Cayuga & Susq. E. E. Co., 10 How. Pr. 330; Earle v. Cadmus, 2 Daly, 
 237. 
 
 8 Pier V. Finch, 24 Barb. 514. 
 
 * Burnell v. N. T. C. E. E. Co., 45 N. T. 184; Fairfax v. N. T. C. & H. E. E. E. Co., 
 67 N. T. 11; Stewart V. Stone, 127 N. T. 506; Canfield v. Baltimore & O. E. E. Co., 
 93 N. T. 532; Claflin v. Meyer, 75 N". T. 260. 
 
 6 Curtis V. Avon, etc., E. E. Co., 49 Barb. 148; 49 N. T. 546. 
 
 « Middletown v. Fowler, 1 Sails;. 282 ; Upshore v. Aidee, 1 Comyns, 25. 
 
 'Nevins v. Bay State Steamboat Co., 4 Bosw. 225; Berley v. jSTewton, 10 How. Pr. 
 490. See McCormack v. Penn. C. E. E. Co., 49 N. Y. 303; Williams v. Great W. E. 
 Co., 10 Exch. 15. 
 
■i'li; Law of Bailments. 
 
 •which the owners become liable ; and that agreements of this kind are 
 upheld.' 
 
 The general rule applies : the carrier is entitled to know the general 
 nature and value of the property he is asked to take charge of ; but 
 where the carrier demands and receives compensation as freight for 
 the transportation of packages containing merchandise and baggage, 
 and there are no circumstances of fraud or concealment on the part of 
 the passenger, the carrier must answer for the merchandise as well as 
 the baggage.- And where he sets up a limitation of his liulnlit)', he 
 must establish the contract affirmatively ; since the l;nv \\ ill not imply 
 a contract from a notice on a check or card given for baggage.'' 
 
 § .576. There being no special agreement relating to a passenger's 
 baggage, his fare or the price paid by him for a ticket, includes the 
 transportation of his baggage.'' The contract covers his baggage ^ — 
 those articles of wearing apparel and personal comfort and convenience 
 which are usually or occasionally carried by passenger as baggage." 
 The contract to carry the ordinary baggage of a passenger is implied 
 from the usual course of business ; and the carrier's obligation is to 
 receive and carry the baggage in the same conveyance or train, and 
 deliver it to the passenger at the place of destination in the usual 
 manner.' Outside of any special agreement, the carriage of baggage is 
 incident to the carriage of a passenger ; and in the absence of the 
 principal contract for the conveyance of the passenger, /. c, where he 
 goes by another and parallel route, the carrier is not chargeable as such 
 with his baggage.^ 
 
 A servant travelmg with, and on a ticket paid for l)y his master, may 
 maintain an action in his own name against a railway company for the 
 
 ' Steers t. Liverpool, N. T. & P. Steamship Co., 57 X. T. 1; .51 N. Y. 166. 
 
 2 Stoneman v. Erie Eailway Co., 52 X. Y. 429; Buchanan v. Turner, 26 Md. 1; 
 Hannibal Railroad v. Swift, 13 Wallace, 202; Sloman v. Great Western Ey. Co., 67 
 N. Y. 208; Millard v. Missouri, K. & T. R. il. Co., SO X. Y. 441. 
 
 8 Prentice v. Decker, 49 Barb. 21; 4 Bosw. 225; 19 Wend. 270. 
 
 ■* ( 'liicago & Rock Island l!. R. Co. v. Fahey, 51 111. 81; Isaacson v. X. Y. C. & H. 
 R. R. R. Co., 94 N. T. 278. 
 
 5 PowpU v. Meyers, 26 Wend. 591. 
 
 « Oiaii-o Co. Bank v. Brown, 9 Wend. 85; Merrill v. Grinnell, 30 N. Y. 594; Dexter 
 V. Synu-usc, etc., R. R. Co., 42 N. Y. :!2ii; Hawkins v. Hoffman, 6 Hill, 580; Pardee 
 V. Divw, 2") W'rad. 459; Ouimit V. Henshaw, 35 Vt. 604. 
 
 " aia^.'o \ . X. Y. C. R. R. Co., 36 Barb- 557; Jones v. Norwich <fc X. Y. Tr. Co., 
 50 Barb. 193; T'ollins v. Boston & M. R. K. Co., 10 Cush. 506. 
 
 8 F.iafiix V. X, Y. C. & H. River R. R. Co., 5 Jones and Spencer, 516; Wilson v. 
 Grand Trunk R. Co... 50 :\raine, 60. See 67 X. Y. 11 ; and see Curtis v. Del., L. & W. 
 K. R. Co., 74 X. Y. no, 122. 
 
Common Cabeiees. 457 
 
 loss of his baggage ; he is not obliged to sue upon the contract, and it 
 is not material who pays his fare.' If the plaintiff brings his action on 
 the contract, he must prove a contract with himself ; ^ and when he 
 brings an action on the case, charging the carrier on the ground of his 
 common law liability, it is sufficient to establish plamtifE's title to the 
 goods, and that they were placed in the defendant's custody by the 
 plaintiff's daughter, servant, son or agent as a passenger.' 
 
 § 577. A railroad company running in connection with others and 
 forming a through line, may contract to carry freight for the entire 
 distance ; and the contract stipulating for exemption from liability as 
 an insurer, will enure to the benefit of the connecting roads. ^ The con- 
 tract may be proved by the bill of lading, or it may be established by 
 other evidence ; ^ it is not established by showing a delivery of the goods 
 marked or addressed to a party at the termination of the route. The 
 law does not in this country imply a contract by the carrier, from the 
 Teceipt of goods thus marked, to carry them beyond the terminus of his 
 line ; at which point he becomes a forwarder, bound to send them for- 
 ward according to his instructions, or in the usual manner.' And the 
 rule is not changed where the freight for the entire distance is paid in 
 advance, to be afterwards divided with a connecting line of boats by 
 which the transportation is to be completed.' 
 
 An important railroad carrier uses this form, in receipting goods for 
 transportation : " Goods or property consigned to any place off the com- 
 
 1 Marshall v. York, N. & B. K. Co., 11 C. B. 6.55; Van Horn v. Kermit, 4 E. D. 
 Smith, 453, 456. See Porter v. N. Y., L. E. & W. E. E. Co., 59 Hun, 177; Flaherty 
 V. Greenman, 7 Daly, 481; Blair v. Erie Ey. Co., 66 N. Y. 313. 
 
 2 Weed V. Saratoga E. E. Co., 19 Wend. 534; Beecher v. Great Eastern E. Co., 18 
 Weekly E. 627; proof of contract; Baltimore S. P. Co. v. Smith, 23 Md. 402. See 
 Flint & Pere Marquette Ey. Co. v. Wier, 37 Mich. 111. 
 
 3 Grant V. Newton, 1 E. D. Smith, 95; Piper v. Manny, 21 Wend. 282; Baltimore 
 S. P. Co. V. Smith, 23 Md. 402. 
 
 ^Eailroad Co. v. Androscoggin Mills, 22 Wallace, 594; Eailroad Co. v. Pratt, 22 
 Wallace, 123; Maghee v. Camden & Amboy E. E. Co., 45 N. Y. 514; Manhattan Oil 
 Co. v. Camden & Amboy E. & Tr. Co., 54 N. Y. 197; C. & A. E. & Tr. Co. v. For- 
 sythe, 61 Penn. St. 81. And see Whitworth v. Erie Ey. Co., 87 IST. Y. 413; St. Louis, 
 Iron Mountain & S. E. E. Co. v. Weakley, 50 Ark. 397. 
 
 5 It was proved by the bill of lading in Eailroad Co. v. Androscoggin Mills, supra; 
 and in Eailroad Co. v. Pratt, supra, by the way-bill and other circumstances. See 
 also Eoot V. Great Western E. Co., 45 N". Y. 524; Jennings v. Grand Trunk Ey. Co., 
 127 N. Y. 438, 446; Berg v. Narragansett Steamship Co., 5 Daly, 394. 
 
 « Van Santvoord v. St. John, 6 Hill, 158, 161; Eoot v. Great Western E. Co., 45 
 jST. Y. 524; Babcock v. L. S. & M. S. E. Co., 49 jST. Y. 491; Hinckley v. N. Y. C. & 
 Hudson Eiver E. E. Co., 56 N. Y. 429; Hunter v. Southern Pacific E. E. Co., 76 
 Texas, 195. 
 
 ' Washburn & M. Jl. Co. v. Providence & W. E. Co., 113 Mass. 490. 
 
458 Law of Bailments. 
 
 • 
 
 pany's line of road, or to any point or place beyond its termini, will be 
 sent forward with as reasonable dispatch as the general business of the 
 corporation, at its warehouse within mentioned, will admit, by a carrier 
 or freight-man, when there are such known to the station agent at said 
 warehouse willing to receive the same, unconditionally, for transporta- 
 tion ; the company actincj for the purpose of delivery to such carrier or 
 freight- man, as the agents of the consignor or consignee, and not as car- 
 riers. The company will not be liable or responsible for any loss, dam- 
 age or injury to proi^erty, after the same shall have been sent from said 
 warehouse of the company, or tendered to such carrier or freight-man 
 for such transportation." Under this agreement it is the right and the 
 duty of the carrier to send forward the goods from the termination of 
 the road, according to the terms of the contract.^ 
 
 § 578. A similar contract is held valid in England, and is quite essen- 
 tial there to protect a carrier from the operation of the rule upheld by 
 the English courts,^ namely, that a railway company receiving goods 
 marked for a particular place, undertakes ^.>r//;!«.yrtcvV to carry them to 
 their destination ; that the rule applies -when the goods are directed to 
 points beyond the terminus of the route of the carrier receiving the 
 goods, and even when directed to pomts beyond the limits of England ; 
 and that the contract is exclusively with the first company, so as to 
 leave the owner no right of action against any of the subsequent com- 
 panies on the route." A rule so comprehensive could not be enforced 
 in this country, without compelling the first carrier, in some- cases, to 
 answer for the conduct of a great many companies. 
 
 § 579. The growing custom of our railroads to unite in forming exten- 
 sive lines of transportation, running the same train of cars over several 
 roads, must be considered with the law bearing on the relations thus 
 formed. When the arrangement between the companies provides for 
 the giving of through bills of lading and charging a sum total as freight 
 over the entire line, to be divided between the companies, each may be 
 charged as a carrier on the contract for the transportation of througU 
 freight ; on the ground of the authority given by each company under 
 
 1 Hinckley v. N. T. C. & Hudson River R. R. Co., ^i) X. Y. 420. The stipulation 
 rited authorizes the comisany to forward in the usual course of business by any re- 
 sponsible carrier; and the contract cannot be varied in this respect by proof of a 
 simultaneous direction to forward by rail. 
 
 2 Fowles V. Great Western R. Co., 1 Exch. 699; 7 Raihv. Cas. 421. 
 
 ' Muschamp v. Lancaster & Preston Railw., 8 M. & "W. 421; AVatson v. Ambergate, 
 N. & B. R., 3 Eng. Law & Eq. 407; Scothorn v. R. Stafeordshire Railw., 8 Exch. 341; 
 S. C. 18 Eng. L. & Eq. 50:5 ; Wilson v. York, N. & B. Railw., 18 Eng. L. & Eq. 
 5.57; Crouch v. London & N. Railw., 14 C. B. 255; S. C. 25 Eng. L. & Eq. 287; Bristol 
 & Ex. V. Collins, 7 Ho. Lds. Cas. 194; Coxon v. Great Western R. Co., 5 H. & X. 274. 
 
Common Caeeiers. 45& 
 
 the arrangement.^ The contract being made on the authority of the 
 several companies, it has been urged that they should be held jointly 
 liable on it ; and although the arrangement does not constitute a part- 
 nership, it may easily be so framed as to authorize the making of joint 
 contracts on behalf of the connecting roads.^ 
 
 § 580. P;-Mna/a«'e the delivery of a package or parcel of goods to a 
 common carrier addressed to a consignee at a point on a lateral route 
 branching off from the first line, implies a direction to have the package 
 stopped at the point of separation and sent forward by the usual carrier 
 on the lateral route.^ A similar presumption arises from a delivery of 
 goods to a carrier, addressed to a point beyond the termination of his 
 route, with a special address to the care of a person acting as the car- 
 rier's agent at the terminus. The address authorizes the agent to 
 receive and send forward the goods ; * by itself the address to the care 
 of the agent at the point of new departure may mdicate that the goods 
 are to pass into the hands of the agent's principal. The circumstances 
 may be considered to ascertain the meaning of the special address.* 
 Addressed to a succeeding carrier or to his agent, the meaning is that 
 the goods are to be transferred to the carrier named ; so that when they 
 come into his custody, he receives them as a common carrier.' And 
 when the address specifies a succession of lines or roads by which the 
 goods are to go forward to their place of destination, each carrier must 
 deliver to the next without delay and without departing from his instruc- 
 
 1 Cin., Ham. & Day. R. v. Spratt, 2 Duvall, 4; ante, §§ 572, 573; Hill Man. Co. v. 
 Boston & Lowell E. K., 104 Mass. 122. 
 
 2 In Gass v. N. Y. Providence & B. E. Co. (99 Mass. 220), three carriers united to 
 form a through route and carry freight over it for one entire charge to he divided be- 
 tween the three companies ; and the court held that the arrangement did not create a 
 partnership or joint liability. Wilbert v. N. T. & Erie E. Co., 12 IST. Y. 245; Barter 
 V. Wheeler, 49 N. H. 9. That corporations may become joint carriers, see Swift v. 
 Pacific MaU Steamship Co., 106 N. Y. 206, 216; Aigen v. Boston & M. E. E. Co., 132 
 Mass. 423; Block v. Fitchburg E. E. Co., 139 Mass. 308; Hot Springs E. R. Co. v. 
 Trippe, 42 Ark. 465; Ins. Co. v. E. E. Co., 104 U. S. 146; Barter v. Wheeler, 49 
 N. H. 9; Wylde v. ISTorthern E. E. Co., 53 N. Y. 156. 
 
 8 Eussell & Annis v. Livingston & Wells, 16 N. Y. 515; Van Santvoord v. St. John, 
 25 Wend. 660; S. C. 6 Hill, 157. 
 
 * Bristol v. R. & S. R. Co., 9 Barb. 158. An agent for the delivering carrier does not, 
 instantly on their arrival, become the agent of the owner of the goods. 16 N. Y. 515 ; 
 Fitzsimmous v. Southern Ex. Co., 40 Ga. 330; Ela v. Am. Merchants' Union Ex. Co., 
 29 Wis. 611. 
 
 6 Rogers v. Wheeler, 6 Lansing, 420; S. C. 52 N. Y. 262. 
 
 « Ladue v. Griffith, 25 N. Y. .364; Lamb v. Camden & Amboy E. & Tr. Co., 2 Daly, 
 454, 490; Rogers v. Wheeler, supra. 
 
460 Law of Bailments. 
 
 tions ; ^ and in the usual manner ; "- and with suitable directions." He 
 is bound to use reasonable care and attention in reading the address 
 found upon the goods.* 
 
 § 581. On a carrier's receiving goods marked for a point beyond the 
 terminus of his road or line, his implied contract is to carry them over 
 his road or line and transfer them to the next carrier in the due and 
 usual course of business.^ We find in a few cases some disposition to 
 infer a through contract from rather slight circumstances ; and on the 
 other hand a d ecided current of authority raising no presumption either 
 way." Considering the general course of business, and the frequent 
 changes made, and combinations entered into, for the transportation of 
 freight, it is hardly reasonable to imply a presumption in favor of one, 
 rather than another form of contract. An agreement to carry and de- 
 liver to the next carrier, in a continuous and connected line, binds 
 according to its terms ; ' the carrier fulfills his contract by carrying and 
 deliverhig the goods according to his agreement." And the contract is 
 the same in substance, where a carrier receives goods marked for a point 
 beyond his line and engages to forward them from the terminus of his 
 
 1 McDonald v. Western i;. Cor., :U X. T. 497; Briggs v. N. Y. Central, 28 Barb. 515; 
 Johnson v. N. V. C. R. Co., 33 X. T. 610. 
 
 2 Mills V. Michigan <"entral K., 4.". X. T. r,22. 
 
 3 Hempstead v. X. Y. Central E. E., 28 Barb. 48.5; .■1:3 X. Y. 610. 
 ■i Sherman v. Hudson E. R. R. T',,., 5 Daly, .521. 
 
 6 Eawson v. Holland, 59 X. Y. 611; Jennings v. Grand Trtmk Ey. Co., 127 X. T. 
 438. 
 
 ^ These eases favor the presumption of a through contract: Converse v. Xorwich & 
 X. Y. Tr. Co., 33 Ct. 160; Peet v. Chicago & X. E., 19 Wis. US; X^ashua Lock Co. v. 
 Worcester & X. R. E. Co., 48 X. H. 339; Krender v. Woolcott, 1 Hilton, 223; Lamb 
 V. Camden & Am. R. & Tr. Co., 2 Daly, 4.54, 481; Foy v. Troy & B. E. E. Co., 24 
 Barb. 382; I. (\ R. R. Co. v. Prankenberger, 54 111. 88; ChoUette v. Omaha, etc., 
 E. E. Co., 41 Xorth West. Eep'r, 1106; Ohio & Miss. E. E. Co. v. Emrich, 24111. App. 
 245; Mobile & Girard E. E, Co. v. Copeland, 63 Ala. 219; Erie Ry. Co. v. Wilcox, 84 
 111. 230. These cases do not: Xutting v. Conn. E. E., 1 Gray (Mass.), .502; Burroughs 
 V. X. & W. R. Co., 100 Mass. 26; F. & M. Bank v. C. Tr. Co., 23 Tt. 209; Root v. 
 Great Western R. R. Co., 45 X. Y. 524; Reed v. U. S. E.^. Co., 48 X". Y. 402; Schnei- 
 der V. Evans, 25 Wis. 241; Bennett v. Filyaw, 1 Flor. 403; Kyle v. Laurens Eailw., 10 
 Eich. (S. C.) 382; 111. Central R. R. v. Copeland, 24 111. 332, 389; Hood v. Xew York 
 & X. H. R., 22 Conn. 1, 502; Himter v. Southern Pacific R. E. Co., 76 Texas, 195; 
 Knight V. Providence * W. R. R. Co., 13 R. L 572; Mich. Cent. R. R. Co. v. Myrick, 
 107 U. S. 102; Crawford v. Southern R. R. Ass'n, 51 Miss. 222; Harris v. Grand 
 Trunk Ry. Co., 15 R. L :;71. 
 
 ' Babcock v. L. S. & M. S. R. Co., 49 X. Y. 491; Hinckley v. X. Y. C. & H. R. 
 R. R. Co., .50 X. Y. 429; .Vui. Ex. Co. v. Second X. Bank, 09 Penu. St. 394. 
 
 8 Simkins v. X. & X. L. St. Co., 11 Cush. 102; Hinckley v. X. Y. C. & H. R. E. R. 
 Co.,.56X. Y. 429. 
 
Common Carriers. 461 
 
 route.i The custom of each carrier to collect the freight ah'eady earned 
 of the next carrier to whom the goods are delivered, along the extended 
 line of transit, assumes the separate liability of each company.^ And 
 so does the fact that the first carrier receives from the shipper freight 
 over his line alone.^ A contract to carry beyond his route is not to be 
 presumed ; it must be proved.* 
 
 An agreement fixing the freight at one sum over the entire line does 
 not make it a through contract ; ^ nor does a payment of the entire freight 
 in advance ; ° nor does the circumstance that the receiving carrier unites 
 with other Imes in the use of a common warehouse (elevator), dividing 
 the expense of transshipment and also the freight earned on goods carried 
 over the entire line.' It serves the general convenience, to adopt the 
 natural presumption, that each carrier in a connecting line is responsible 
 for the safe transportation of goods'over his own route. ^ 
 
 § 582. The law takes care that property in the hands of a connecting 
 line of carriers shall remain throughout the transit under the strict 
 protection secured to the oWner at the point of departure. When the 
 contract covers the entire route, the first carrier is responsible for the 
 goods until they are delivered to the consignee, or stored for his benefit 
 at the place of destination. When not delivered under a contract of 
 this kuid, the carrier receiving the goods is answerable for them until 
 he places them in the custody of the next carrier, and he mitU he passes 
 them over to the next, and so onward until they reach the con- 
 signee. The obligation to convey the goods safely is not a whit more 
 imperative than the duty to deliver them. In fact it would appear 
 from the decisions that the law draws the line of duty quite strictly 
 upon the carrier at these points of transshipment along the route.^ It 
 holds each carrier liable until he completes the act of delivery to the 
 
 1 Shelton V. Merchants' Dis. Trans. Co., 59 N. T. 258. 
 
 2 Darling v. Boston & W. E. Co., 11 Allen, 295. 
 ° Nutting T. Conn. River R. Co., 1 Gray, 502. 
 
 * Gray v. Jackson, 51 N. H. 9; S. C. 12 American R. 1, and note 40. 
 
 5 JEtna Ins. Co. v. Wheeler, 49 N. T. 616; Lamb v. Camden & Amboy R. & Tr. 
 Co., 46 N. T. 271; Cin., Ham. & Dayton, and D. & M. R. E. Co., 19 Ohio St. 221; 
 Schneider v. Evans, 25 Wis. 241. 
 
 « Washburn & M., M. Co. v. Providence & W. R. Co., 113 Mass. 490. See Nashua 
 Lock Co. V. Worcester & N. R. R. Co., 48 N. Y. 339. 
 
 ' ^tna Ins. Co. v. Wheeler, 49 N. T. 616; Barter v. Wheeler, 49 N. H. 9. 
 
 " Burroughs v. Norwich, etc., E. R. Co., 100 Mass. 26; Mills v. Mich. Cent. ]?. R. 
 Co., 45 N. T. 622; Hooper v. Chicago & N. R. R. Co., 27 Wis. 81; Wood v. Milwaukee 
 & St. Paul R. R. Co., 27 Wis. 541; Conkey v. Milwaukee & St. Paul E. E. Co., 31 
 Wis. 610. 
 
 " Miller v. Steam Nav. Co., 10 N. Y. 431; Goold v. Chapin, 20 N. Y. 259; Ladue v. 
 Griffith, 25 N. Y. 364; ante, §§ 339, 340; Barter v. Wheeler, 49 N. H. 9. 
 
462 Law ov Bailments. 
 
 next intermediate carrier, and the last in tlie line until he delivers the 
 godds to the consignee, or does some equivalent act by which his respon- 
 sibility is reduced to that of a warehouseman.^ The ground of the rule 
 is thus stated by Judge Smith : " The owner loses sight of his goods 
 when he delivers them to the first carrier, and has no means of learning 
 their wherenljouts till he or the consignee is informed of their arrival 
 at the place of destination. At each successive point of transfer from 
 one carrier to another, they are liable to be placed in warehouses, there 
 perhaps to be delayed by the accumulation of freight or other causes, 
 and exposed to loss by fire or theft, without fault on the part of the 
 carrier or his agents. Superadded to these risks are the dangers of 
 loss by collusion, quite as imminent while the goods are thus stored at 
 some point unknown to the owner as while they are in actual transit. 
 As a general rule the storing uuder*such circumstances should be held 
 to be a mere accessory to the transportation, and the goods should be 
 under the protection of the rule which makes the carrier liable as an 
 insurer, from the time the owner transfers their possession to the first 
 carrier till they are delivered to him at the end of the route." " 
 
 § 5S3. A through contract binds the company making it, irrespective 
 of the means to be used in its fulfillment.^ When the bill of lading 
 given by the first carrier, by a fair construction, imports a contract to 
 carry over the whole line and deliver the goods at the place of destina- 
 tion, it must be enforced according to its terms ; the exemptions con- 
 tained in it apply to the whole route ; * and the contracting carrier 
 must fulfill the stipulations on his part.^ The carrier's contract to 
 forward the goods from the terminus of his line is construed literally 
 as an engagement to send them forward ; "■ while a carrier's contract in 
 
 1 Mills V. Michigan Central R. R. Co., 45 N. Y. 622; Hooper v. Chicago & N. K. 
 Co., 27 Wis. SI; Wood v. Milwaukee & St. Paul E. Co., 27 Wis. 541; Conkey v. Mil- 
 waukee & St. Paul R. Co., :;i Wis. 019; 11 Amer. R. 6.30; McDonald v. Western R. 
 Cor., :i4 X. T. m. 
 
 2 Fenner v. Buffalo * State Line ]!. R. Co., 44 X. T. 'jOo. 
 
 " Mercantile M. Ins. Co. v. Chase, 1 E. D. Smith, 115; Reed v. Spaulding, 5 Bosw. 
 395, 404; S. C. .30 >f. Y. 030; Clyde v. Hubbard, ,SS Pa. St. 358; Newell v. Smith, 49 
 Vt. 255; Falvey v. Georgia E. E. Co., 76 Ga. 597; .lennings v. Grand Trunk Ey. Co., 
 127 N". Y. 438. 
 
 ^ Railroad Co. v. Androscoggin Mills, 22 Wallace, 594; Maghee v. Camden & Am- 
 boy R. R. Co., 45 X. Y. 514; Halliday v. St. Louis, etc., Ry. Co., 74 Mo. 159; South- 
 western E. E. Co. V. Thornton, 71 Ga. 61. 
 
 5 Burtis V. Buffalo ct State Line R. Co., 24 N. Y. 269; Noyes v. Rutland & B. E., 
 27 Vt. 110; 104 Mass. 122; Buffett v. Troy & Boston R. R. Co., 40 N. Y. 108. 
 
 « Reed v. U. S. Ex. Co., 48 X. Y. 402; Am. Ex. Co. v. Seccmd National Bank, 69 
 Penn. St. 394; Burroughs v. Norwich & W. R. Co., 104 Mass. 2(i; Gray v. Jackson, 
 51 N. H. 9. 
 
Common Caebiees. 463 
 
 general terms to forward goods or packages having an address upon 
 them- indicating the place of destination, has been construed, in con- 
 nection with a general arrangement between the connecting lines, as an 
 agreement to carry and deliver at the place indicated by the address.^ 
 
 The shipper of goods under a through contract has nothing to do 
 with the contracting carrier's arrangement with the companies forming 
 the connecting line. There is no privity between him and the other 
 parties to the arrangement. He has a right to rely on the contract.^ 
 
 These through contracts cannot be made without authority ; ' but 
 the authority of an agent to give through bills of lading may be proved 
 by showing that he was supplied by the carrier with prmted bills of 
 that kind, or that he agreed upon and received the amomit of freight 
 to the place of destination and executed the usual contract.* 
 
 A through contract may be proved by circumstances ; ^ e. g., by 
 showing that the receiving carrier had an arrangement with other lines 
 for the transportation of through freight, and that he advertised and 
 held himself out to the business community as engaged in carrying 
 freight between two given points, over connecting roads or lines of 
 transportation, chargmg a single freight for the entire distance ; and 
 that he received the goods in question with that understanding.* 
 
 § 584. A verbal contract to receive and' carry goods is valid, and may 
 consist with a receipt afterwards given for a parcel of goods.' After 
 the verbal agreement has been acted upon and rights have accrued 
 under it, it is not merged in a bill of lading sent to the shipper and 
 through inadvertence not examined by him.^ But where the shipper, 
 
 1 Nashua Lock Co. v. Worcester & N. E. E. Co., 48 N. H. 339 ; lU. C. E. Co. v. Frank- 
 enberg, 54 111. 88;Cutts v. Brainerd, 42 Vt. 566. 
 
 2 Coudict V. Grand Trunk E. Co., 4Lansing, 106; S. C. 54N.T.500; Kingv. Macon 
 & Western E. E. Co., 62 Barb. 160. 
 
 3 Wait V. Albany & Susq. E. Co., 5 Lans. 475; Burroughs v. Norwich, etc., E. E. 
 Co., 100 Mass. 26. 
 
 * Condiet V. Grand Trunk E. Co., supra; Kreuder v. Woolcott, 1 Hilton, 223; La 
 Sage v. Great Western E. Co., 1 Daly, 306; Goodrich v. Thompson, 44 N. Y. 324; 
 Ogdensburg, etc., E. E. Co. v. Pratt, 22 Wallace, 123, 131. 
 
 5 Aiken v. Chicago, B., etc., E. E. Co., 68 Iowa, 363. 
 
 6 Root V. Great Western E. E. Co., 45 N. T. 524; Eailroad Co. v. Pratt, 22 Wallace, 
 123, 131; Irwin V. N. T. Central E. Co., 1 N. T. Sup. Ct. (T. & C.) 4,3; S. C. 59 
 N. Y. 653, }\lnte Line. See Swift v. Pacific Mail Steamship Co., 106 N. Y. 206, 219, 
 220. 
 
 ' Blossom V. Griffin, 13 N. T. 569. 
 
 8 Bostwick V. Bait. & Ohio, 45 N. Y. 712; Hill v. Syracuse, B. & N. Y. E. E. Co., 
 8 Hun, 296; S. C. 73 N. Y. 351; Coffin v. N. Y. C. E. E. Co., 64 Barb. 379; S. C. 56 
 N. Y. 032; Guillaume T. General Transportation Co., 100 N. Y. 491; Germania Fire 
 Ins. Co. v. Memphis, etc., E. E. Co., 72 N. Y. 90; Wheeler v. N. B, & C. E. E. Co., 
 
464 Law of Bailments. 
 
 on delivering the property, takes from the carrier a bill of lading or 
 other voucher expressing the terms upon which the property is to be 
 carried, the writing is under ordinary circumstances to be taken as the 
 final agreement between the parties ; ^ excluded parol evidence to vary 
 its terms ; ^ and not excluding proof of instructions respecting the 
 mode or route of transportation, in harmony with its language ; * and 
 not excluding proof of the customary mode of delivering goods and 
 taking for them receipts, to be afterwards supplemented by bills of 
 lading.' 
 
 The usual bill of lading partakes of a two-fold character ; it is both 
 a receipt and a contract. It is a receipt specifying the articles taken 
 on board of a vessel ; and it is a contract to deliver the same at a cer- 
 tain place and to a certain party. So far as it is a receipt, it is open to 
 explanation ; and so far as it is a contract, it cannot be varied by parol 
 testimony.^ Originally the term, bill of ladiiuj, was used as descriptive 
 only of the ship carrier's contract ; recently, it is coming to be used as 
 equally descriptive of a land carrier's contract.^ 
 
 § .585. The receipt embodied in a bill of lading, stating the property 
 to have been received or shipped in good order, is prima facie proof of 
 its condition, as received by the carrier ; ' and of the quantity, as 
 
 115 TJ. S. L"J; Swift v. Paeiflc ilail Steamship Co., 106 N. Y. 206, 219; Louisville * 
 N. E. E. Co. V. Mt-yer, 78 Ala. ry.)7 ; Jennings v. Grand Trunk Ey. Co., 127 N. T. 438, 
 449. 
 
 1 Long V. K. Y. C. M. E. Co., 50 N. Y. 70; 62 N. Y. 171; Germania Fire Ins. Co. 
 V. Mempliis, etc., E. K. ('o., 72 N. Y. 90; Guillaume v. General Transp. Co., 100 
 N. Y. 491; Jennings v. Grand Trunk Ey. Co., 127 X. Y. 4oS, -440. 
 
 2 Wliite V. Aslitou, 51 X. Y. 280; Hinckley v. N. Y. Central & H. Eiver R. E. Co., 
 56 N. Y. 429. 
 
 3 Maghee v. Camden & Am. E. E. Co., 45 N". Y. 514, 522; Riley v. I^'. Y., L. E., <fc 
 W. E. E. Co., .34 Hun, 97. 
 
 * Slielton V. Merchants' Dispatch Trans. Co., 59 N. Y. 259. 
 
 5 Edwards on Factors and Brokers, § 6; ^Meyur v. Peek, 28 X. Y. 590 ; Witzler v. 
 Collins, 70 Me. 290; Doty v. Thomson, 39 Hun, 243. 
 
 •^ Here is the old form of the Bill of Lading, as given hy Abbott on Shipping, Part 
 4, Ch. 4, 7th ed. 
 
 " J. W., ) ^HIPPED, by the grace of God, in good order, by A. B., merchant, in 
 Xo. 1 a 20. ) O and upon the good ship called the John and Jane, whereof C. D. 
 is master, now riding at anchor in the river Thames, and bound for Barcelona in 
 Spain, twenty bales, containing one hmidred pieces of broadcloth, marked and num- 
 bered as per margin; and are to be delivered in the like good order and condition at 
 Barcelona aforesaid (ibe dangers of the seas excepted) unto E. F., merchant there, or 
 to his assigns, he or they paying for the said goods per piece freight with 
 
 primage and average accustomed. In witness whereof the master or purser of the 
 said ship hath affirmed to three bills of lading of tliis tenor and date, one of which 
 bills being accomplished, the other two to stand void. And so God send the good ship 
 to her destined port in safety." 
 
 ' Price V. Powell, 3 N. Y. 322; Ellis v. Willard, 9 N. Y. (5 Seld.) 529; Great West- 
 ern E. V. McDonald, 18 111. 172. 
 
Common Carriers. 465 
 
 specified in it.* Though not conclusive as to the amount, the carrier 
 ma,Y bind himself by agreement to deliver the amount specified ; ^ and 
 the receipt itself may bind him in favor of a party who acquires title 
 to the goods while they are in transit.^ 
 
 The receipt takes effect according to its terms. Given for a sealed 
 package, " said to contain " or without specifying the contents, it is 
 evidence only of the receipt of the package ; and it rests with the ship- 
 per to prove the contents and value.^ The whole statement, including 
 like phrases, is to be read together.^ 
 
 § 586. The exception in a bill of lading is an essential part of the 
 agreement, and must be stated in a complaint on the contract ; * and 
 the plaintiff must allege a breach by the defendant, of the agreement 
 as qualified by the terms of limitation.'' And where the plaintiff bases 
 his action on the carrier's common law liability, it is proper for the de- 
 fendant to set up the contract in his answer, and give a copy of it ; 
 and then allege that the goods were lost by accidents or casualties 
 covered by the exception contained in the bill of lading.* 
 
 From an early day carriers by water have been accustomed to stipu- 
 late for exemption from liability arising from the perils of the sea ; 
 leaving the shipper of the goods to protect himself by procuring an in- 
 surance on them against those perils. The exception does not appear 
 in the bill of lading used in the reign of Elizabeth ; and it does appear m 
 the bill used in the reign of Charles the First.' It was afterwards en- 
 larged and modified in many ways. What losses are attributable to 
 the dangers or " perils of the sea " ? The phrase is very broad, and the 
 forces that act upon and at times work loss or damage to the ship and 
 its cargo are capable of almost infinite modifications ; but the phrase 
 
 ^ Meyer V. Peck, 281^. Y. 590; Strong v. Grand Trunk R., 15 Mich. 206. 
 
 2 Bissel V. Campbell, 54 N. T. 353; Rhodes v. Newhall, 126.1sr. T. 374. 
 
 ' Hastings v. Pepper, 11 Pick. 43; Dows v. Perrin, 16 N. T. 325; Berkley v. Wat- 
 kins, 7 Adol. & Ellis, 29; 48 How. Pr. 119. 
 
 * Fitzgerald v. Adams Ex. Co., 24 Ind. 447; Dunn v. Branner, 13 La. Ann. 4.52; 
 The Colmnbo, 19 Law Rep. 376; 3 Blatchf. C. C. 524. See Miller v. Hannibal & St. 
 Jo. R. R. Co., 90 ISr. T. 430; Roth v. Hamburgh Am. Packet Co., 35 State Rep'r, 89. 
 
 ^ Kelly V. Bowker, 11 Gray, 428; Shepherd v. I^aylor, 5 Gray, 591; Clark v. Barn- 
 well, 12 How. 272; Bissel v. Price, 16 HI. 408; Miller v. Hannibal & St. Jo. R. R. Co., 
 90 N. Y. 430, 485. 
 
 6 Cope V. Cordova, 1 Rawie, 203. 
 
 'Spence v. Chadwick, 10 Q. B. 517; Howland v. Greenway, 22 How. U. S. 491; 
 Morrison v. Davis, 20 Penn. St. 171. 
 
 8 Dorr V. N". J. SteamNav. Co., 11 N. Y. 485, 486, 491. See Gleadell v. Thomson, 
 56 N. Y. 194. 
 
 'Ch. J. Kent, in Elliott v. Rossell, 10 John. R. 1, 8, 9, refers to these exceptions 
 as evidence of the common law. 
 
 30 
 
466 Law of Bailments. 
 
 is not broadly construed. The danger from fire, which is certainly- 
 enhanced by the situation of the ship, is not considered a peril of the 
 sea.^ The phrase is considered descriptive of those dangers arising 
 from the elements, which occur without the intervention of human 
 agency, and which the prudence of man cannot foresee, nor his strength 
 resist.'-^ It covers losses by collision without fault on the part of the 
 carrier ; '■' and it does not cover losses arising in part through his neg- 
 ligence ; * nor such as he might have foreseen and ought to have pre- 
 vented.'^ 
 
 § TiST. It has been asserted that a carrier does not by excepting "the 
 dangers of the seas," vary or qualify his common law liability ; in other 
 words, that whatever is a peril of the sea will excuse the carrier without 
 any stipulation to that effect." But while it is plain enough that the 
 phrase covers many acts of superior force for which the carrier is not 
 liable under the general rule, it is also clear that the exception relieves 
 him from some losses for which he is otherwise liable.' By legal in- 
 tendment the exception covers those perils of the seas, or accidents in- 
 cident to navigation, not included among the acts of God.' The law 
 
 1 Morewood V. Pollock, 1 Ellis & Black. T43; .S. f. 18 Eng. L. ct Eq. 341; N. .J. 
 Steam N"av. Co. v. Jlercliants' Bank, How. TJ. .S. Uep. 344; Garrison v. Memphis 
 Ins. Co., 19 How. U. S. 312. 
 
 2 3 Kent's Com. 300; Schooner Reeside, 2 Sumner, 571. 
 
 3 Smith V. Scott, 4 Taunt. 120; Hays v. Kennedy, 41 Penn. St. 378. Buller t. 
 Fisher (3 Esp. 1)7) was an action against the owners of the ship Atlas, for the loss of 
 goods shipped in her, and the bill of lading excepted the perils of the sea. The cir- 
 cumstances presented were these: Two ships, called tlie Patriot and the Matthew, 
 were sailing In one direction, and the Atlas in another ; the Matthew was to leeward 
 when they saw the Atlas coming; the ;\Iatthew steered to keep closer to the wind, in 
 order to give the Atlas an opportunity to pass; the Atlas mistook the object, and un- 
 able to weather both ships, she and the Patriot ran foul of eacli other, and the Atlas 
 went down. Lord Kkx yox : "If the defendants have been guilty of any degree of neg- 
 ligence, and it could have been proved that the accident might have been prevented, 
 they would have certainly been liable ; but they are exempt by the condition of the 
 charter-party from misfortunes happening during the voyage, which human prudence 
 could not guard against — against accidents happening without fault of either party. 
 I am of opinion that neither ship could be deemed to be in fault ; and that the misfor- 
 tune must be taken to be within the exception of the perils of the sea." 
 
 * Converse v. Brainard, 27 Ct. 007; Lloyd v. Gen. Iron Screw Collier Co., 3 II & C. 
 284. 
 
 5 Xew Haven Steamboat Co. v. Vanderbilt, 16 Ct. 420; Sills v. Brown, 9 Carr. & 
 Payne, 001; Blythev. Marsh, 1 N. & :ircCor(l,360; Fairchild v. Slocum, 19 Wend. 32',i. 
 
 6 Crosby v. Fitch, 12 Ct. 410; following Williams v. Grant, 1 Ct. R. 487. 
 'McArthurv. Sears, 21 Wend. 190, 198; ante, § .j40. 
 
 8 Judge BOCKE.S, in R.-dpath v. Vaughan, .52 Barb. 489, 499, and cases there c'lWd 
 by him. S. C. 48 N". Y. ii55. "Where a ship is driven by stress of weather on or near 
 the enemy's coast, and there captured, it is a loss by capture and not by the perils 
 
Common Caeeiees. 467 
 
 relieves the carrier from liability for losses compelled by stress of weather 
 in order to lighten the ship ; ^ and the exception in the bill of lading will 
 excuse him from losses that cannot be attributed to the act of God ; ^ 
 but will not enable him to recover freight on the goods not dehvered, or 
 to retain it where it is paid in advance." 
 
 Similar exceptions, covering the dangers of navigation, the dangers of 
 the lake or the river, are construed on the same principle ; they relieve 
 the carrier from losses coming within the very terms of the exception, 
 provided the carrier shows that the goods were lost by the perils speci- 
 fied in the exception. The burden of proof still rests with the carrier.* 
 
 of the sea; but where the vessel is lost or destroyed by the waves some miles from 
 the shore, and then plundered by the enemy, it is a loss by the perils of the sea. It 
 is not material how near the shore or how far from it the loss occurs; if the vessel be 
 wrecked, stranded or lost, and afterward visited by the enemy who captured the cargo, 
 it is considered a loss by the perils of the sea, these being the immediate cause of the 
 loss. The law regards the proximate and not the remote cause. Hahn v. Corbett, 2 
 Bing. R. 205; Green v. Elmslie, Peake N. P. C. 278; Bondret v. Heutigs, Holt N. P. 
 C. 149. Under an exception in these words, " the act of God, the King's enemies, 
 fire and all and every other dangers and accidents of the seas, rivers and navigation 
 of whatever nature and kind soever, save risk of boats so far as ships are liable there- 
 to excepted," the carrier was not held liable for goods dispatched from the ship in a 
 boat, as usual, at the place of her destination, and lost in a hurricane. Johnston v. 
 Benson, 1 Brod. & Bing. 454. 
 
 1 Price V. Hartshorne, 44 Barb. 655; S. C. 44 N. Y. 94. In this case the carrier, in 
 order to save his vessel and the residue of the cargo from total loss by sinking, was 
 obliged to throw overboard the grain stored on the deck; and it was held justified by 
 the necessity, so that the carrier was not liable therefor under the usual contract. 
 
 2 Laurie v. Douglas, 15 Mees. & Wels. 746; Kingsford v. Marshall, 8 Bing. 458. 
 See Merritt v. Earle, 291^. Y. 115; 52 Barb. 489. The destruction of goods by rats has 
 been held a loss by perils of the sea. Carrigues v. Coxe, 1 Binn. 592 ; but cannot now 
 be so regarded; Aymar v. Astor, 6 Cowen, 266; Laveroni v. Drury, 8 Exch. 166; 16 
 Eng. L. & Eq. 510. 
 
 8 Phelps V. Williamson, 5 Sandf. 578; Griggs v. Austin, 3 Pick. 20. 
 
 * An exception in these words, " dangers of the river only excepted," used in a bill 
 of lading, covers only such dangers as cannot be guarded against by human skill and 
 foresight; it has the same sense as these words, " dangers of the river which are un- 
 avoidable." It releases the oarrier from liability for accidents and loss occasioned by 
 invisible snags or hidden obstructions newly placed in the river, so that human skill 
 and foresight cannot discover and avoid them. Johnson v. Eriar, 4 Yerg. (Tenn.) 
 48, relating to an invisible snag in the Hatchie river; Gordon v. Buchanan, 5 Yerg. 
 71 ; to the like effect is Eedpath v. Vaughan, 48 Jf. Y." 655. The exception does not 
 change the burden of proof. In Turney v. Wilson (7 Yerg. 340) the court instructed 
 the jury that the " dangers of the river, as defined by the law, means all hidden ob- 
 structions in the river, as rocks, logs, sawyers, and the like, which could not be fore- 
 seen nor avoided by human prudence ; and that before the carrier can be excused in a 
 case of loss, he must show that the loss happened from some cause which human 
 foresight or prudence could not avert;" and the charge was held proper. See Hooper 
 T. Wells, Fargo & Co., 27 Gala. E. 1. 
 
4fj8 Law of Bailments. 
 
 § 588. May tlie contract embodied in a bUl of lading be controlled in its 
 legal effect by proof of usage? Being free from ambiguity, verbal 
 
 It rests witli the carrier to exonerate himself from liability; he is liable unless he 
 proves a loss of the goods from a cause ^^•ithin the exception. AVhere a box of sov- 
 ereigns was shipped, to be carried from New York to Mobile, and the bill of lading 
 contained the usual exception, " against perils of the seas," and the vessel being 
 wrecked on the Honda Reefs, the captain removed the box from the state-room where 
 it could be locked up, and placed it in the run where the crew had free access, and 
 allowed it to remain there without personally superintending it while the wreckers 
 were on board, and the,box was lost; it was held that the burden of proof was on the 
 carrier to show that the loss occurred by a " peril of the sea ; ' ' and that failing in 
 this, he must be held liable for the loss ; tliat embezzlement was not a peril of the sea, 
 and that theft and robbery were perils of the sea, only where they amounted to the 
 crime of piracy on the higli seas ; that the fact of the wreck did not vary the liability 
 of the carrier unless the property perished or was lost with the wreck, and in conse- 
 quence of it, and that the carrier was bound to exert all possible diligence, care and 
 skill. King v. Shepherd, 3 Story, ?>49; Shaw v. Gardner, 12 Gray, 4SS. 
 
 The decisions have the same drift in Pennsylvania. Thus, where a steamboat on 
 the Ohio ran upon a stone and stove a hole in her bottom, the carrier was not dis- 
 charged from liability by virtue of the exception in his bill of lading, " the dangers of 
 the river only excepted ; " but was held to prove that due diligence and proper skill 
 were used to avoid the accident, and tliat it was unavoidable. Whitesides v. Russell, 
 8 Watts & Serg. 44. The same exception of the " dangers of the river" will cover a 
 loss caused by collision with another boat, on proof that the loss did not occur by the 
 carrier's negligence, or that it could not have been prevented by reasonable skill and 
 diligence, by the hands on board. Whitesides v. Thurkill, 12 Smedes & Marshall, .599. 
 So in respect to the dangers of the lake; Fairchild v. Slocum, 19 Wend. ."iO; 7 Hill, 
 292. Without any exception in the bill, the carrier is liable for a loss by collision at 
 sea. Plaisted v. Boston A E. Steam Nav. Co., 27 Maine, l."2; 11 X. T. 9. An ex- 
 ception of " unavoidable accidents," and an exception of " unavoidable dangers and 
 accidents of the road," are not, either of them, considered as a restriction of the car- 
 rier's general liability. Walpole v. Bridges, 5 Blackf. 222; Fish v.. Chapman, 2 Kelly 
 R. 340. 
 
 "The dangers of navigation" are interpreted like other similar exceptions; it 
 covers the dangers whicli are fairly attributable to the navigation ; it does not cover 
 losses arising from negligence or the want of due skill on the part of the carrier's 
 servants. Hays v. Kennedy, 41 Penn. St. 37S; and when the exception relates to the 
 navigation of a public canal, it covers only such dangers as are incident to it when the 
 trip is made in conformity with the public regulations, of which the carrier must take 
 notice; and hence he must answer for a damage arising from the bilging of his boat 
 in a lock entered by him in contravention of the canal rules. Atwood v. Reliance 
 Transp. Co., 9 Watts, 87. See Johnson v. Belden, 47 X. Y. 1.30, where the action 
 was against a canal officer. So where he receives goods on a contract "excepting 
 the dangers of the navigation," to go by a particulate route, he will be liable for a loss 
 occurring on a different route. Hand v. Baynes, 4 Whart. 204. What is the risk of 
 navigation ? Pitcher v. Hennessy, 48 X. T. 41.'5. Reserving the privilege of reship- 
 ment or transshipment does not affect the contract. Dausett v. Wade, 2 Scam. 2S.'i; 
 Little V. Simple, 8 Mis. R. 99. 
 
Common- CAuRrERs. 469 
 
 evidence is not received to vary tlie terms or the legal import of the 
 contract \ e. g., where a clean bill of lading is given, which imports that 
 the goods are to be stowed under deck, parol evidence will not be re- 
 ceived to prove a verbal agreement that the goods were to be stowed 
 on deck} All prior, as well as contemporaneous stipulations are merged 
 in the writing ; ^ verbal evidence of these are therefore excluded under 
 the general rule, applicable to all contracts.^ The writing does not 
 , exclude proof of extrinsic facts and circumstances ; ^ or proof of mistake 
 or fraud.^ And it does exclude the proof of local usage to limit or 
 qualify the carrier's liability under the contract or under the common 
 law." 
 
 A custom or usage of business may be proved to assist in the inter- 
 pretation of a bill of lading, or to show performance under it ; and the 
 proof will have the same effect upon this as upon other contracts.' It 
 is received to interpret or explain, but not to vary or contradict the con- 
 tract.' It may be received to justify carrying goods on deck, on a lake 
 or river, or along the coast, according to the established course of trade.' 
 It would defeat the intent of the parties to exclude proof of a custom of 
 this kind." 
 
 iCreery V. Holly, 14 Wend. 26; Niles v, Culver, 8 Barb. 205; White v. Van Kirk, 
 25 Barb. 16. 
 
 - Renard v. Sampson, 12 N. T. 501 ; Fitzhugh v. Wyman, 5 Seld. 559. 
 
 3 Thompson v. Sloan, 23 Wend. *71, 76; Barry v. Ransom, 12 N. T. 462; Bank of 
 Albion V. Smith, 27 Barb. 489. 
 
 * Harmon v. N. Y. & Erie R. R. Co., 28 Barb. 323. 
 
 5 Graves v. Harwood, 9 Barb. 477. 
 
 6 Simmons v. Law,' 8 Bosw. 213; S. C. 3 Keyes, 217; Wolfe v. Myers, 3 Sandf. 7; 
 per CowEx, J., 21 Wend. 194; Brittan v. Barnaby, 21 How. (U. S.) 527; Oliver v. 
 Memphis Ins. Co., 19 How. (U. S.) 312. Contra: Gordon v. Little, 8 Serg. & Rawle, 
 533; Singleton V. Hilliard, 1 Stobhart, 203, allowing testimony to restrict the carrier's 
 liability by usage. Usage was excluded to show a damage by rats, a peril of the sea, in 
 Aymar v. Astor, 6 Cowen, 266. 
 
 'Walls V. Bailey, 49 N. T. 464; Kirchner v. Venus, 12 Moore Priv. Coun. Cases, 
 361. For the difference between custom and usage, see Hursh v. North, 40 Penn. St. 
 241. See also Wayne v. Steamboat Gen. Pike, 16 Ohio, 421. 
 
 8 Schooner Reeside, 2 Sumn. 567; Turney v. Wilson, 7 Terg. 340; Smith v. Clews, 
 114 ■S'. T. 190; Snowden v. Guion, 101 HT. T. 458; Hopper v. Sage, 112 N. T. 530, 
 .535; Colgate v. Pennsylvania Co., 31 Hun, 297; Newhall v. Appleton, 114 N. T. 140; 
 Silberman v. Clark, 96 N. T. 522; Atkinson v. Truesdell, 127 N. T. 230. As to the 
 distinction between the proof of a usage and proof by experts of the meaning of a 
 technical term or phrase, see Nelson v. Sim. Mut. Ins. Co., 71 N. T. 453. 
 
 9 Harris v. Moody, 30 N. T. 266; Nelson v. Belmont, 21 N. T. 36; May v. Babcock, 
 4 Ohio, 334 
 
 10 The usage in shipping goods and giving bills of lading may be considered on a 
 question of title to the cargo. Blossom v. Champion, 37 Barb. 554; Brower v. Pea- 
 body, 13 N. T. 121. 
 
470 Law of Bailjients. 
 
 Custom and the course of business may also be proved, as evidence 
 tending to show a dehvery to the carrier, or a delivery by the carrier ; i 
 and as evidence of performance according to the true intent of the con- 
 tract. 
 
 § 589. In actions on policies of insurance agamst the perils of the sea, 
 the rule of construction is somewhat more liberal toward the assured 
 than it is toward the carrier, who has made an exception of these perils 
 in the charter-party or bill of lading.^ The underwriter assumes the 
 risk of loss from these perils for a consideration, and he cannot relieve 
 himself from liability for a loss within the enumerated perils, by show- 
 ing that the loss was remotely caused by the negligence of the master 
 and mariners." The principle is the same as it is where he insures 
 against a loss by fire, and is not allowed to escape liability for the loss 
 insured against, by showing that the fire arose from the negligence of 
 the insured or that of his agents or servants.* The policy may be so 
 drawn that it will not bind the underwriter, to answer for losses arising 
 directly or indirectly from the want of ordinary care and skill, in the 
 lading or navigation of the vessel.^ But when the policy iasures a 
 vessel or cargo against the perils of the seas, lakes or rivers, the insurers 
 are liable for losses arising directly from those perils — i. e., for any 
 damage to, or loss of the property insured.^ Negligence by the master 
 
 1 Ante, §§ 524, 525 ; Blin v. Mayo, 10 Vt. 56 ; , Gibson v. Culver, 17 "Wend. 305 ; Huston 
 V. Peters, 1 Met. Ky. 55S; Dixon v. Dunham, 14 111. ','y24; Shelton v. Merchants' Dis- 
 patch Transp Co., 59 N. Y. 258; 5 Pick. 371. 
 
 2 Columbia Ins. Co. v. Lawrence, 10 Peters, 507; Waters v. Merchants' Ins. Co., 11 
 Peters, 213; Peters t. Warren Ins. Co., 14 Piters, 99; 2 Story's R. 170. 
 
 3 Walker V. Maitland, 5 Barn. <fe Aid. 171; Draper v. Com. Ins. Co. & Columbia 
 Ins. Co., 4 Duer, 234, 239; Copeland v. New E. M. Ins. Co., 2 Mete. 435; Bishop v. 
 Pentland, 7 Barn. & Cress. 219. 
 
 « Gates V. Madison Co. M. Ins. Co., 1 Seld. 5 X. T. 469, 47S. 
 
 ^ Savage v. Corn Ex. Fire and Inland Xav. Ins. Co., 4 Bosw. ., 19; S. C. 36 N. T. 
 655. For an insurance against perils, excepting ice, see Dows v. Howard Ins. Co., 5 
 Eobt. 473; Allison v. Corn Ex. Ins. Co., 57 N. T. 87. 
 
 ^ The contract is Intended to insure the owner against tlie specified sea risk; the 
 owner impliedly engages that the vessel is seaworthy; and the underwriter engages to 
 insure tlie vessel or cargo against certain risks. He may assume to bear all risks, 
 and render himself liable for all losses except such as arise from the fraud of the 
 insured. Goix v. Knox, 1 John. Cases, 337. The general words in a policy are not 
 construed so broadly. Moses v. Sun Mutual Ins. Co., 1 Duer, 159. An insurance oa 
 goods against loss by thieves may bind the underwriter for losses by theft perpetrated 
 by parties not connected with the ship. Atlantic Ins. Co. v. Sterrow, 5 Paige Ch. 
 285; and when the policy upon a cargo insures against perils from thieves and 
 barratry of the master and mariners, it covers a loss by theft, whether the offense is 
 committed by tlie crew or by others ; it is not limited to external or assailing thieves. 
 American Ins. Co. v. Bryan, 1 Hill, 25; S. C. 26 Wend. •")(i3. Insui-ance against baiTar 
 
Common Carriers. 471 
 
 or mariners does not relieve them ; and, on the other hand, they do not 
 undertake for the good conduct, skill and prudence of these persons em- 
 ployed on the vessel. Hence where the insured vessel, through the 
 negligence of her master and crew, comes in collision with another 
 vessel and is condemned in damages therefor, the underwriters are not 
 answerable for these damages ; since they do not insure against the 
 negligence of the master and mariners as a distinct cause of loss, con- 
 sidered apart from the property insured.^ 
 
 The law holds the insurer to the terms of his contract, and where he 
 insures against loss by a specific peril, it does not consider the secondary 
 cause of the loss. " It were infinite for the law to consider the cause of 
 causes, and their impulsions one of another ; therefore it contenteth 
 itself Avith the immediate cause, and judgeth of acts by that, without 
 looking to any further degree." Causa proxima, non remota spectatiir? 
 If two causes of loss combine in working damages, and the owner of the 
 iQJured property holds a policy, insuring him against one of these causes 
 and not against the other, he is entitled to recover the damages result- 
 ing from the cause covered by the policy, where these can be distin- 
 guished and separated from the others.' And he has no right of action 
 where the uninsured cause is the efficient agent in creating a total wreck ; 
 as where he procures a policy of insurance on a building or on a vessel, 
 exceptiag therefrom losses arising from an explosion, and the property 
 is destroyed by an explosion.* 
 
 § 590. A bill of lading is the written evidence of a contract for the 
 carriage and delivery of goods sent by water, for a certain freight. It 
 is signed by the captain or master of the ship or vessel, and states, among 
 other things, by whom the goods are shipped, and where, and to whom 
 they are to be delivered. There are generally three or more parts of 
 the iastrument ; one of which is usually sent to the consignee by the 
 ship which carries the goods ; another is sent to him by some other con- 
 try is rather anomalous, and not to be extended by construction : Hallett v. Col. 
 Ins. Co., 8 Jolin. 272; 1 Term E. 330; it is not included among tlie perils of the 
 sea; Waters v. Merchants' Ins. Co., 11 Peters, 213; it implies bad faith on the part of 
 the master; Atkinson v. Great Western Ins. Co., 65 N. T. 531. 
 
 1 Mathews v. Howard Ins. Co., 11 N. T. 1, 16; Gen. Mutual Ins. Co. v. Sherwood, 
 14 Peters, 351; De Vaux v. Salvador, 4 Add. & Ellis, 420; 31 Eng. Com. Law, 
 104; Perrin v. Protection Ins. Co., 11 Ohio, 147. 
 
 ^Bacon's Max. Keg. 1; Brown's Leg. Max. 104; Bahcock v. Montgomery Co. 
 Mu. Ins. Co., 4 K. T. 326. The rule is applied in Allison v. Corn Ex. Ins. Co., 57 
 N. T. 87. 
 
 ' Briggs V. North Amer. & M. Ins. Co., 53 N. Y. 446. 
 
 * Evans v. Columbian Ins. Co., 44 N. Y. 146; Strong v. Sun Mut. Ins. Co., 31 N. Y. 
 103; St. John v. Am. M. Fire & Marine Ins. Co., 11 N. Y. 516. 
 
472 Law of Bailments. 
 
 veyance ; and a third is kept by tlie merchant or shipper.^ The con- 
 tract as used on our canals and rivers, is usually much less full and 
 formal, without losing its true character.^ It binds the master, the ship 
 and the general owner.' It is vaUd when signed by the owner, though 
 not signed by the master ; * and it is not considered a bill of lading 
 unless it expresses or imports a contract for the conveyance of the 
 goods. ^ 
 
 Between the shipper and the carrier the contract is enforced according 
 to its terms, qualified only by the common law obligations incident to 
 the bailment.^ The shipper, being the owner of the goods, retains the 
 control over them, with the right to dispose of them as he sees fit. The 
 bill of lading naming the consignees or parties to whom the goods are 
 to be delivered does not conclude the owner and shipper ; he retains 
 a right to change his purpose and order their delivery to another party.' 
 He has the right to assign the bill of ladmg, which represents the goods, 
 absolutely or as a security for the payment of advances on the property; 
 and he may do this by indorsmg over, or by simply delivering the bill 
 with the intent to pass the title.* The carrier is bound to deliver the 
 goods to the party holding the bill given by him to the shipper.' 
 
 When the owner of goods sells and ships them to the purchaser, and 
 sends to him the bill of lading, thus enabling him to take possession of 
 the goods on their arrival, the bill becomes evidence of title in the con- 
 signee ; and while tlie sending of the bill of lading to the purchaser does 
 not cut off the right to stop the goods in their transit, there is prima 
 facie a presumption of title in the consignee.^" The legal effect of thus 
 
 1 Covin V. Hill, 4 Denio, 323, 330. 
 
 2 Dows V. Greene, 16 Barb. 72; Dows v. Rusli, 28 Barb. l.JT; Dows v. Perrin, 1(1 
 N. T. 325; Dows v. Greene, 24 N. T. 6.38. 
 
 2 Schooner Freeman v. Buckingham, 18 How. XJ. .S. 182. 
 
 ^ Rawls T. Deshler, 3 Keyes, .572. 
 
 ^ Holbrooli; v. Vose, 6 Bosw. 76, 109; Gage v. Jaqueth, 1 Lans. 207. 
 
 •5 Dobbin v. Thornton, 6 Esp. E. 16; Simmons v. Law, 8 Bosw. 213; S. C. 3 Keyes, 
 217. 
 
 ' Mitchell V. Ede, 11 Adolph. & Ellis, 888; Cayuga Co. National Bank v. Daniels, 
 47 N. Y. 631. 
 
 ' Bank of Rochester v. Jones, 4 N. T. 407; Merchants' Bank, v. Union K. E. & 
 Transp. Co., 69 N. Y. :;7?.. 
 
 « The City Bank r. Rome, W. & O. R. Co., 44 X. Y. 136; Tyndal v. Taylor, 4 EUis 
 & Black. 219; Howard v. Shepard, 9 M. Gr. & Scott, 290; Armour v. Mich. C. R. Co., 
 65 N. Y. Ill; Furman v. Union Pacific R. R. Co., 100 N. Y. .")79; Colgate v. Penn- 
 sylvania Co., 102 X. Y. 120; Bank of Batavia v. X'. Y., L. E. & W. R. R. Co., 106 
 X. Y. 195. 
 
 1° Sweet V. Barney, 2:! X. Y. :!3."); Fitzhugh v. Wiman, 9 X. Y. 559; Gossler v. .Schp- 
 peler, 5 Daly, 4711; Ivrulder v. Ellison, 47 X. Y. 36; Lacker v. Rhoades, 51 X. Y. 641. 
 
Common Careiees. 473 
 
 sending forward the bill depends upon the existing relation between 
 the consignor and consignee. A shipment of the goods, in pursuance 
 of a sale valid under the statute of frauds, and sending forward the 
 carrier's receipt or bill of lading, vests the consignee with the title in 
 form and in fact ; but a shipment of goods under a verbal order, invalid 
 as a sale, does not become valid so as to vest the title in the consignee, 
 until the goods are accepted and received by him.^ When the goods 
 are selected, and shipped by the conveyance chosen by the purchaser, 
 the title passes on a delivery to the carrier ; and here the bill of lading 
 in the hands of the purchaser is evidence of his actual title, though not 
 required to perfect his title.'' The bill does not constitute the title, and 
 the law does not give effect to it as a negotiable instrument.^ 
 
 § 591. We have seen that the bill of lading may be indorsed or trans- 
 ferred as evidence of an absolute sale, and as a pledge or mortgage of 
 the goods covered by it.* It remains to notice the ground on which it 
 is thus capable of being used to effect different purposes. A merchant 
 making a consignment of goods to his factor for sale takes from the 
 carrier a bill of lading showing on its face his title to the propertj' — a 
 contract which is assignable conditionally or absolutely at his pleasure, 
 and may be assigned by indorsing or delivering over the bill ; and the 
 assignment may be qualified by parol proof showing the purpose of the 
 transfer.^ As owner he may pledge or mortgage the goods covered by 
 the bill, and order their delivery to the transferee." On the same princi- 
 ple, a merchant receiving advances upon goods under an agreement 
 that he will ship them to the party making the advances, to be sold to 
 meet the indebtedness, transfers the title by shipping the goods to the 
 advancer and sending him the bill of lading or any like evidence show- 
 ing an intent to transfer the title.' The consignee having made advances 
 upon the specific goods, stands in a position analogous to that of a vendee 
 
 1 RodgersV. Phillips, 40 N. T. 519; Cross v. O'Donnell, 44 N. Y. 661; CaiiUdns v. 
 Hellman, 47 K Y. 449; Norman v. Phillips, 14 Meeson & Welshy, 277. 
 
 2 Cross V. O'Donnell, supra, 44 jS". Y. 661, 665. The.goods must be accepted. Stone 
 V. Browning, 51 N. Y. 211. See Magruder v. Gage, 3.3 Md. 344; AUard v. Greasert, 61 
 N. Y. 1; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17. 
 
 3 Barnard v. Campbell, 55 N. Y. 456, 462; S. C. 58 N. Y. 73; Pollard v. Vinton, 
 105 U.S. 7; Shaw v. Merchants' Bank, 101 U. S. 557; Bank of Batavia v. N. Y., 
 L. E. & W. R. R. Co., 106 K. Y. 195. 
 
 * Ante, §§ 590, 211-214; Farmers & Mechanics' Nat. Bank v. Logan, 74 N. Y. 56S. 
 
 5 Haille v. Smith, 1 Bos. & Pull. 563; Bryans v. Nix, 4 Mees. & Welsh. 791; Bank 
 of Rochester v. Jones, 4 N. Y. 497, 501; Conrad v. Atlantic Ins. Co., 1 Peters, 144. 
 
 " First Nat. Bank of C. v. Kelly, 57 N. Y. 34; Marine Bank of Chicago v. Wright, 
 48 N. Y. 1; Cayuga Co. Nat. Bank v. Daniels, 47 N. Y. 631 ; M. & T. Bank v. F. 51. 
 Nat. Bank, 60 N. Y. 40; First Nat. Bank of Toledo v. Shaw, 61 N. Y. 283. 
 
 ' Bailey v. Hudson River R. R. Co., 49 N. Y. 70; Ogg r. Shnter, 11 English R. 316. 
 
474 Law of Bailments. 
 
 after he has paid the purchase money and the property has been shipped 
 to him.^ And so when the bill of lading is delivered to the consignee 
 to meet a draft drawn against the consignment, he cannot retain the 
 bill without accepting or paying the draft, according to the agreement.^ 
 
 § 502. A stipulation in the bill of lading fixing the amount of the 
 freight and demurrage, with a provision that the same is to be paid by 
 the consignee, does not bind a factor to whom the goods are sent for sale 
 on commission, until he accepts them. By accepting the consignment, 
 he makes himself a party to the contract of affreightment, and becomes 
 liable to the carrier for the freight and damages stipulated for in the 
 bill of lading." And the rule is general, that the consignee receivmg 
 the cargo is liable for the freight ; and that the assignee of the bill re- 
 ceiving the cargo is liable for the freight.* The ordinary contract of 
 the carrier is to deliver the goods to the consignee or his assignees, " he 
 or they paying freight for the same ; " and the party accepting a delivery 
 under the bill impliedly engages to pay the freight.^ The rule does not 
 apply to an intermediate consignee, receiving in order to forward the 
 goods ; " and it does apjply to the ultimate consignee, both when he is, 
 and when he is not, the owner of the goods.' Being the owner of the 
 goods, the contract of shipment binds him from the beginning ; " and 
 where the bill does not otherwise provide, he is liable on the contract 
 for the freight,^ to be computed and ascertained according to the stipula- 
 tions contained in it." 
 
 § 593. A provision in the bill relating to the time and mode of the 
 delivery, with a stipulation for demurrage at a certain rate, binds the 
 consignee accepting and receiving the property ; on the ground that 
 when he accepts the consignment he makes himself a party to the con- 
 
 1 Grosvenorv. Phillips, 2 Hill, 147; Holbrook v. Wight, 24 Wend. 169. 
 
 2 Bank of Rochester v. Jones, 4 Denio, 489; .S. C. 4 X. Y. 497; Grant v. Shaw, 16 
 Mass. E. 341; Murdock v. Mills, 11 Metcalf E. .5; Allen v. Williams, 12 Pick. E. l'!i7; 
 Craig T. Sibbett & Jones, 15 Penn. St. 2.3S. See Edwards on Bills and Kotes, -itl- 
 424, marg. page; Ogg; v. Shuter, 11 English (Moak), 316. 
 
 3 Dupeirat v. Wolf, 29 K. Y. 430; Milliken v. Dehon, 27 N. Y. 364; Morse v. Peas- 
 ant Brothers, 7 Bosw. 199; 26 N. Y. 86. See Woodruff v. Havemeyer, 106 X. Y. liii. 
 
 ^Da-visonv. City Bank, .57 X. Y. 81; Seggart v. Scott, 6 Esp. R. 22; MoUer v. 
 Living, 4 Taunt. 102. 
 
 5 Dart V. Ensign, 47 X. Y. 619; Hinsdell v. Weed, 5 Denio, 172; post, § 643. 
 
 s Davis V. Pattison, 24 X. Y. 317, 320. 
 
 'I^Telson v. Hudson Eiver E. E. Co., 48 N. Y. 498; Davison v. City Bank, 57 X. Y. 
 81. 
 
 8 Idem; Sheets v. Wilgus, 56 Barb. 662. 
 
 9 Gilson V. Madden, 1 Lans. 172; Barker v. Havens, 17 John. E. 234; 47 X. Y. fild. 
 M Ward V. Whitney, 8 JT. Y. (4 Seld.) 442. The liability arises on contract and not on 
 
 title. Martin v. Smith, 1 N. Y. S. C. (T. & C.) 20; S. C. 58 X. Y. 072. 
 
Common Caeriees. 475 
 
 tract embodied in the bill of lading.^ The carrier recovers according to 
 the terms of the stipulation ; and where the time for iinloading is left 
 to be regulated by the custom of the port, the consignees are only liable 
 for damages by the delay not warranted by the custom.^ Prima facie, 
 Sundays are to be excluded, under a stipulation fixing the charge to be 
 allowed per day for demurrage ; these not being regarded by the law as 
 working days.= If the boat or vessel be delayed a certain number of 
 days and hmirs beyond the stipulated time, a day is to be reckoned as 
 twenty -four hours ; and the stipulated time counted from the arrival of 
 the vessel in the adjacent waters, with notice of readiness to discharge 
 cargo.' The carrier has no lien on the goods for damages in the nature 
 of demurrage.* 
 
 When the contract is specific, it is enforced quite strictly ; ^ but in 
 the absence of any stipulation fixing the time for unloading, there is 
 an implied agreement for a reasonable time, which may be affected by 
 a press of busuiess ; ^ and cannot be extended for the purpose of giving 
 the consignee an opportimity to effect a sale.' 
 
 Under a contract of affreightment the freighter is bound to load a 
 vessel within a reasonable time ; and the consignee can only be ren- 
 dered liable for his neglect, by showing the freighter's authority to bind 
 him by the contract.* A detention of the vessel caused by the consignee, 
 delaying the discharge of her cargo, renders him liable in damages ; it 
 is a breach of his contract, express or implied, to return the vessel to 
 the general use of the owner in a reasonable time.' And one effect of 
 this breach, after the carrier has tendered a delivery and after the lapse 
 of a reasonable time for unloading the vessel, is to reduce the carrier's 
 liabihty to that of an ordinary bailee for hire.^" 
 
 1 Morse V. Peasant Brotliers, 7 Bosw. 199; S. C. 2 Keyes, 16; Merian v. Funk, 4 
 Denio, 110; N. T. & Havre Steam Nav. Co. v. Young, 3 E. D. Smith, 187; Woodruff 
 V. Havemeyer, 106 K. Y. 129. 
 
 ^Kingney v. WMte, 4 Daly, 400; Cargo of the Mary E. Taber, 1 Benedict, 106; 
 Cochran t. Eetberg, 3 Esp. 121. 
 
 5 Wiles V. ]Sr. Y. Central & H. K. R. Co., 4 N. Y. Sup. Court (T. & C), 264. 
 
 * Crommelin v. N. Y. & H. E. Co., 10 Bosw. 77; S. C. 4Keyes, 90; East Teun., etc., 
 E. E. Co. V. Hunt, 15 Lea (Term.), 261; Chicago, etc., Ey. Co. v. Jenkins, 103 Dl. 588. 
 
 ^ Eandal v. Lynch, 2 Campb. 352; Burmster v. Hodgson, 3 M. & C. 267. 
 
 « Cross V. Beard, 26 N. Y. 85. 
 
 ' Huntley v. Dows, 55 Barb. 310. 
 
 8 Fisher v. Abeel, 66 Barb. 381 ; Lockhart v. Falk, 12 English E. 573. 
 
 'Horn V. Bensusan, 9 Carr. & P. 709; Evans v. Foster, 1 Barn. & Aid. 118; 
 Brouncker v. Scott, 4 Taunt. 1. 
 
 1° Clendaniel v. Tuckerman, 17 Barb. 184; Bradstreet v. Baldwin, 11 Mass. 229; 
 Hathom v. Ely, 28 N. Y. 78 ; 10 Mete. 472 ; 2 Daly, 454, 473 ; 2 Keyes, 18. See Western 
 Tr. Co. V. Barber, 56 N. Y. .544, 551. 
 
476 Law of Bailments. 
 
 § 504. The master's right to bmd the owners of the vessel by contract 
 is limited to the line of his duties and within the fair scope of his em- 
 ployment. He cannot bind them by giving a bill of lading for property 
 not shipped ; ^ and he does not bind them by such acts and contracts as 
 are fairly covered by his authority as an agent.^ Encountering obstacles 
 in the prosecution of his voyage, or on the route of the transportation, 
 it is the master's duty to communicate with the owners of the vessel 
 where that is practicable, or with the consignees, where he has the 
 means of doing so, by telegraph, asking for instructions or advice upon 
 the situation.' And his failure to fulfill a duty created by the contract, 
 equally with his unauthorized act, such as a misdelivery of the goods, 
 binds the owners of the vessel as carriers.' 
 
 § 595. The law superadds to the stipulations contained in the contract 
 of charter-party, certain duties and obligations incident to the carrier's 
 employment, and it enforces the contract of the parties so as to give it 
 effect according to its terms. Where the whole of a vessel is chartered 
 to take a cargo at certain specific rates per ton, if the shipper does not 
 furnish a full cargo, the owner of the vessel is entitled to freight not 
 only for the cargo actually put on board, but also for what the vessel 
 might have carried ; ^ deductmg what the vessel earned or might have 
 earned by receiving and carrying other goods sufficient to make a fuU 
 cargo." So, where a vessel is chartered for a voyage, out and home, for 
 an entire sum of money, to be paid on her return home, her return is a 
 condition precedent, to entitle the owner to freight ; and if she be lost 
 before commencing the homeward voyage, the owner can neither re- 
 cover on the charter-party, nor on an implied assumpsit, for the freight 
 of the outward voyage.' The parties are bound by the contract ; hav- 
 
 ^ Grant v. Norway, 10 C. B. 665; Coleman v. Eiclies, 16 C. B. 104, commented upon 
 by Judge Selden, in 16 N. Y. 125, 140, and by Judge Comstock, on page 151; 
 Schooner Freeman v. Buckingbam, 18 How. U. S. 182; Hubbersty v. Ward, 8 Excb. 
 330; 18 Eng. Law & Eq. 551; Jessel v. Bath, Law Rep. 2 Excb. 207. See Armoury. 
 Mich. C. Co., 65 X. T. Ill; Pollard v. Vinton, 105 U. S. 7; Bank of Batavia v. N". T., 
 L. E. & W. K. E. Co., 106 X. Y. 195; Sioux City, etc., R. R. Co. ». First Xat. Bank, 
 10 Neb. 556; Fricdlander v. Texas & P. Ry. Co., 130 V. S. 416. 
 
 ^ Ante, § 510. The master should communicate with his principal in a home port, 
 or where he can do so, in all cases of emergency, Gager v. Babcock, 4S N. T. 154. 
 
 3 Bryant v. Commonwealth Ins. Co., 13 Pick. 543; The Convoy's Wheat, 3 Wallace, 
 225. 
 
 * Zinn V. New Jersey Steamboat Co., 49 N. Y. 442; Guillaume v. Hamburgh & Am. 
 Packet Co., 42 N. Y. 212. 
 
 5 Duffie V. Hayes, 15 John. E. :127. 
 
 « Heckscher v. MeCrea, 24 Wend. 304; Shannon r. Comstock, 21 Wend. 457; Ash- 
 burner V. Balchen, 7 N. Y. (3 Seld.) 262. 
 
 ' Tennoyer v. Hallett, 15 John. E. 332; Barker v. Cheriot, 2 John. E. 352. 
 
Common Cahkiebs. 477 
 
 ing agreed that the freight shall be paid in one event only, the owners 
 must abide by their agreement.^ There must be some act of waiver to 
 support an implied assumpsit ; such as a voluntary acceptance of the 
 goods at the place of disaster.^ 
 
 VI. Careiage op Goods. 
 
 § 596. The essence of the common carrier's contract is to carry and 
 deliver safely the goods entrusted to him. The manner in which he per- 
 forms the undertaking becomes a matter of importance and inquiry only 
 after a loss or injury has been sustained, in consequence of his deviat- 
 ing from the instructions received, or from the terms of his contract. 
 Thus, the master of a vessel is responsible for the safe stowage of goods, 
 under deck ; for if he carries them on deck without the owner's consent, 
 and they are lost by the dangers of the sea, or thrown overboard for the 
 safety of the vessel, the owners of the goods under deck are not bound 
 to contribute to the loss.' But the rule does not apply when goods are 
 carried on deck according to the established usage, or with the shipper's 
 knowledge and without objection on his part.^ The manner of receiv- 
 ing and transporting goods may be, and is often regulated by the con- 
 tract ; ^ leaving the carrier under obligation to use skill and diligence 
 in the mode of transportation agreed upon.' 
 
 The carrier is answerable for the proper stowage of the cargo with a 
 view to the protection of each jparcel or kind of goods from injuries 
 likely to result from other parcels, or from the motion of the ship. He 
 is bound to use prudence and skill, and stow the goods in the usual and 
 approved manner ; '^ and yet cannot escape liability for injuries caused 
 by the goods of other parties, received in bad condition, on proving 
 that the goods were stowed in the usual manner.^ His duty to lade 
 
 1 Liddard v. Lopes, 10 East E. 529. The courts enforce, they do not make con- 
 tracts. Champlin v. Rowley, 13 Wend. 258; S.'C. 18 Wend. 187. 
 
 2 Case of the Mohawk, 8 Wallace, 15.3; Home Ins. Co. v. Western Transp. 51 N. T. 
 93; The Kathleen, 12 English E. (Moak) 645. 
 
 8 The Paragon, El well. Master, Ware, 322; Dodge v. Bartol, 5 Greenl. B. 286; 
 Lenox v. U. S. Ins. Co., 3 John. Cas. ITS. 
 
 * Price v. Hartshorn, 44 Barb. 6J5; 44 jST. T. 94; Harris v. Moody, 30 N. T. 266; 
 Gould V. Oliver, 4 Bing. N. C. 134; Crosby v. Fitch, 12 Conn. 410. 
 
 ^Empire Transp. Co. v. Wallace, 68 Penn. St. 302; 8 Amer. R. 178; Maghee v. 
 Camden & Amboy R. R. Co., 45 IST. T. 514. 
 
 6 Empire Transp. Co. v. Wamsutta Oil Co., 63 Penn. St. 14. 
 
 ' Blaikie v. Steambrldge, 6 C. B. (N. S.) 894; Idem, 911; Sack v. Ford, 13 C. B. 
 (jSr. S.) 90; Lamb v. Parkman, 1 Sprague, 343. 
 
 8 The Bank of Cheshire, 2 Sprague, 28; Brass v. Maitland, 6 Ellis & Black. 470; 36 
 Eng. Law & Eq. 221, 227; The David & Caroline, 5 Blatehf. 266. 
 
478 Law of JJailmexts. 
 
 the vessel and safely carry and deliver the goods renders him answer- 
 able for the use of all expedient means to that end.^ 
 
 § 597. The carrier must consider the nature of the goods, and must 
 observe the instructions given him, with respect to the mode of placing 
 and carrying fluids, and boxes containing glass, crockery and like arti- 
 cles, lie must carry goods in the manner directed, or show that the 
 loss did not happen in consequence of his neglecting to observe the in- 
 .structions,accompanying them.^ A box containing a glass bottle filled 
 with the oil of cloves, delivered to a common carrier and marked " glass, 
 with care, this side up," is a sufficient notice of the value and nature of 
 the contents, to charge him for the loss of the oil, occasioned by his 
 disregarding the direction.' The form of a package often indicates its 
 contents ; and when it does not, the shipper should notify the carrier 
 of its contents, so that he may take proper care of the goods.* 
 
 It is the shipper's business to have the goods properly and securely 
 packed for the voyage ; but his failure in this will not relieve the car- 
 rier from liabihty for a loss arising from his failure to use due and rea- 
 sonable diligence to preserve the goods. '^ Neither will an exception of 
 leakage or breakage in the bill of lading relieve the carrier from lia- 
 bility for losses thus arising by his negligence or that of his servants ; 
 it does not of itself relieve him from the burden of showing how the 
 loss occurred and that he used due care and vigilance." Having proved 
 a loss within the terms of the exception, with the circumstances, 
 showing that he was not at fault, or consistent with his duty in the 
 premises, he is entitled to the benefit of the stipulation in the con- 
 tract.'' If a cask of wine be shipped under a bill of lading exempting 
 
 1 Clark V. Barnwell, 12 How. U. S. 272. 
 
 2 Wiltz V. Morrell, 66 Barb. 5U; .Johnson v. X. T. Central R. E. Co., 33 X. T. 610. 
 2 Hastings v. Pepper, 11 Pick. IX. 41. 
 
 « In re Webb, 6 Scott, N". R. 950. 
 
 6 Phillips V. Clark, 5 C. B. (X. S .) 882 ; Nelson v. Woodruff, 1 Black. 156 ; 5 Blatchf . 
 266; Shriver v. Sioux City & St. Paul R. R. Co., 24 Minn. 506. 
 
 « Steele v. Townsend, 1 Ala. Sel. Cas. 201; 37 Ala. 247; Reno v. Hogau, 12 B. Mon. 
 (Ky.) 03; Zung v. Ilowland, 5 Baly, 136. See Xicliolas v. X. T. C. & H. E. E. R. Co., 
 4 Hun, 327; 51 X. T. 01; Arend v. Liverpool, X. T. & P. Steamship Co., 6 Lansing, 
 4.-.7. 
 
 ' R. P., Co. V. Reeves, 10 Wallace, 176; X. J. Steam Xav. Co. v. Merchants' Bank, 
 6 How. U. S. 344; French v. Buffalo R. R. Co., 4 Keyes, 108; Lamb v. Camden & 
 Amboy R. R. & T. Co., 40 X. T. 271, 278; 4 Hun, 327; Farnham v. Camden, etc., 
 E. E. Co. , -"JS Pa. St. 53. Where the carrier proves a contract exempting him from lia- 
 bility for loss from a specified cause, and that the loss occurred from that cause, the 
 burden is on tlie plaintiff to show facts taking the case out of the operation of the ex- 
 emption clause. Caldwell v. X. J. Steamboat Co., 47 X. T. 282; Cochran v. Dins- 
 more, 49 N". Y. 252; Whitworth v. Erie Ey. Co., 87 N. Y. 413, 419. 
 
Common Caeeibes. 479 
 
 the carrier from loss by leakage, he does not bring himself within the 
 exemption by proving a delivery of the empty cask, in a sound con- 
 dition ; he must prove that the loss occurred by leakage.' 
 
 § 598. Exemptions from liability in the bill of lading do not, as we 
 have seen, excuse a carrier for a loss, where it appears, or is found as 
 a fact, that Ms negligence in stowing or carrying the goods occasioned 
 the loss.'' If a ship meet with a collision on the voyage, a peril except- 
 ed in the bill of lading, wetting the cargo, and the vessel is delayed 
 for repairs, it is the carrier's duty to take active measures, where it is 
 reasonably practicable under all the circumstances, to check and ar- 
 rest the loss or deterioration resulting, and likely to result from the ac- 
 cident.^ Being bound to take active measures to preserve the property, 
 the carrier is entitled to recover the reasonable expenses incurred by 
 him in doing so.^ He is not bound to delay his voyage unreasonably, 
 and he is bound to use all reasonable means, such as a prudent owner 
 being present would take, to save the property from loss by natural 
 causes.^ 
 
 Inattention to the contents of boxes received by him, and receipted 
 as containing perishable freight, will not relieve him from liability there- 
 for, where his vessel is detained by a fog and he omits to send them 
 forward by rail, a mode of conveyance previously used when his vessel 
 was detained ; as where dressed poultry was shipped on a steamboat 
 for New York, packed in ice, and was greatly injured by the delay, the 
 
 1 Arend v. Liverpool, N. T. & P. S. Co., 6 Lansing, 457. Where a portion of the 
 contents is lost by leakage, the consignee should receive the residue. Howe v. O. & 
 S. R. E. Co., 56 Barb. 121. While it is for the carrier to account for any deficiency in 
 the cargo ; Hawkes \\ Smith, Car. & M. 72 ; or to show that the damage arose in 
 part from bad packing ; Higginhotham v. Great Northern R. Co., 2 F. & F. 796 ; or to 
 show that a loss by leakage arose from some defect in the cask; Hudson v. Baxen- 
 dale, 2 H. & N. ■)">; it is to be left to the jury, on the testimony, to find whether the 
 loss arose from defects in the casks, and whether the carriers knew or ought to have 
 known thereof, and had acted negligently in sending them on in that state. Cox v. 
 London & Northwestern R. Co., 3 F. & F. 77. 
 
 2 Camoys v. Scurr, 9 Carr. & P. 383; Steamboat Co. v. Bason, Harp. (S. C.) 262; 
 Spencer v. Daggett, 2 Vt. 92; Jones v. Pitcher, 1 Stew. & P. (Ala.) 136. 
 
 3 Tronson v. Dent, 8 Moo. P. C. 419, relating to a cargo of opium; jSTotara v. 
 Henderson, 1 English (Moak), 269; Law Rep. 72, B. 225, relating to a cargo of beans. 
 See also Chouteaux v. Leach, IS Penn. St. 224; Blocker v. Wittenburg, 12 La. Ann. 
 410; Propeller Niagara v. Cordes, 21 How. U. S. 7; Bird v. Cromwell, 1 Mo. 81. As 
 to delay in receiving goods, see 28 N". Y. 72. 
 
 * Great Northern R. Co. v. Swoffeld, 8 English (Moak) R. 567; Law Rep. 9 Exch. 
 132; a horse stabled to wait for the owner. 
 
 5 Rogers v. Murray, 3 Bosw. 357, 365; Steamboat Lynx v. King, 12 Mo. 272; Wing 
 V. N. T. & Erie Ry. Co., 1 Hilton, 235; Butler v. Murray, 30 N. T. 88. 
 
480 Law of Bailments. 
 
 ice melting and leaving the freight to perish by decaJ^^ So where on a 
 voyage goods are accidentally wet and thereby exposed to injury, the 
 carrier is bound to use every reasonable means to arrest and prevent 
 the damages likely to result from the accident.^ Under the rule as held 
 in some of the States, the carrier may relieve himself of this obligation 
 by a special contract ;» not so, under the rule as held in others and sus- 
 tained by the IT. S. Supreme Court.* 
 
 The carrier is not liable for losses or deterioration resulting from 
 natural causes, or from the nature of the goods, without fault on hii} 
 part ; as where a cargo of vegetables or fruit is injured by natural decay, 
 consequent upon a long voyage or the vessel's delay by reason of being- 
 driven under stress of weather out of her course, and detained in a for- 
 eign port for repairs ; " or where a cargo of lard is greatly diminished 
 by leakage caused by heat in passing through a warm climate ; " or 
 where an article like wine or molasses is injured or lost on the voyage 
 by fermentation.' The carrier is not required to answer for losses of 
 this kind, arising from the climate or from the nature of the goods, 
 where his negligence does not contribute to the loss.' 
 
 Under a contract for the conveyance and delivery of fruit within a 
 
 1 Peck V. Weeks, 34 Ct. 145. 
 
 2 Bird V. Cromwell, 1 Mo. 58, 81; Ewart v. Street, 2 Bailey (S. C), 157; Cliouteaux 
 V. Leach, 6 Harris, 224. 
 
 3 Nicholas v. X. T. C. & H. R. R. Co., 4 Hun, 327; on the authority of CraginT. 
 N. T. Central R. R. Co., 51 N. T. 01. The case in Hun, was reversed by the court of 
 appeals, not on the ground that the carrier could not contract for exemption from 
 liability for want of care, but on the ground that he had failed to so contract. See 
 S3 K. Y. 370. 
 
 * Railway Company v. Lockwood, 17 Wallace, 366. 
 
 ^ Ship Howard V. Wessman, 18 How. U. S. 231; The Brig Collenberg, 1 Black 
 (U. S. R.), 170. Sec McGraw v. Baltimore & O. R. R. Co., 18 W. Va. 361; American 
 Express Co. v. Smith, 33 Ohio St. 511. 
 
 <> Nelson v. Woodruff, 1 Black, 156, relates to a loss on a voyage from New Orleans 
 to New Tork. 
 
 ' Warden V. Geer, 6 Watts, 424; Farrar v. Adams, Buller, N. P. See Nelson r. 
 Stephenson, 5 Duer, 53s. 
 
 8 It is assumed in Davidson v. Gwynne, 12 East, 381, that a carrier is liable for dam- 
 ages to fruit from his neglect of proper ventilation ; and the same principle is affirmed 
 in Clark v. Barnewell, 12 How. U. S. 272, where a cargo of cotton thread was injured 
 on a warm southern voyage, from dampness or moisture. Ante, §§ 537-542 ; Eixf ord 
 V. Smith, 52 N. H. 355. It is the carrier's duty to protect the goods carried from 
 injury or destruction from any source if he can do so by the exercise of proper care 
 and foresight. If he accepts butter for transportation he must provide refrigerator or 
 other cars in which ice may be used if necessary to protect the butter from injury from 
 heat. Beard v. Illinois Cent. R. R. Co., 79 Iowa, 518; Beard v. St. Louis, A. & T. H. 
 R. R. Co., 79 Iowa, 527. 
 
Common Caheiers. 481 
 
 giTen time, the carrier is held to a rigid performance.^ Unavoidable 
 accidents "will not avail him as a defense, under a contract to carry and 
 deliver within so many days : ^ the rule is not so strict under a general 
 contract to carry and deliver.' 
 
 § 599. The owner or shipper of goods cannot recover of the carrier 
 damages resulting from the imperfect or bad packing of the goods, when 
 delivered for conveyance ; and yet the carrier is liable where he might 
 have prevented the damage or loss of the goods by the exercise of 
 reasonable diligence. It is not thought wise to excuse the carrier's 
 negligence on the ground of the shipper's prior negligence, since it often 
 happens that packages and boxes of goods delivered in good condition 
 at the start are injured or broken on the way, and for that very reason 
 require some increased care in their transportation.* Receiving the 
 goods imperfectly packed or secured, the carrier is bound for their safe 
 conveyance.^ 
 
 § 600. A clause ui a bill of lading giving the carrier the privilege of 
 reshipping or transhipping the goods is not interpreted as otherwise 
 modifying or limiting the contract ; it is regarded as a privilege con- 
 ceded to the carrier for the purpose of enabling him to fulfill the con- 
 tract and deliver the goods at the place of destination.' It takes effect 
 according to its terms, and is limited by its terms.' It does not affect 
 the stipulation fixing the amount of the freight, nor is it usually in- 
 tended to relieve the carrier from his liability under the contract.* 
 
 ^ Place V. Union Ex. Co., 2 Hilton, 19; Simpson v. London & Northwestern R. 
 Co., 45 L. J. Q. B. Div. 182; 1 L. K. Q. B. Div. 174. 
 
 2 Harmony r. Bingham, 1 Duer, 209; S. C. 12 N. Y. 99; Higginson v. Weld, 14 
 Gray, 465; Eead v. Hudson & Del. Canal Co., 3 Lans. 213. 
 
 ' Gage v. Terrell, 9 Allen, 299; Collier v. Swinney, 16 Mo. 484; Parsons v. Hardy, 
 14 Wend. 215, 217; 23 Wend. 306. 
 
 * Klauber v. American Ex. Co., 21 Wis. 21; Nelson v. Stephenson, 5 Duer, 538; 
 loss by leakage; Brind v. Dale, 8 C. & P. 207; Eixford v. Smith, 52 N. H. 355; Ohio 
 & M. E. E. V. Dunbar, 20 111. 623; Brown v. Clayton, 12 Ga. 566; Pemberton Co. v. 
 N. T. C. E., 104 Mass. 144; Briggs v. Taylor, 28 Vt. 180; Phillips v. Clark, 5 C. & B. 
 (N. S.) 882; Hudson v. Baxendale, 2 H. & N. 575; The David & Caroline, 5 Blatclif. 
 266; Barbour V. Southeastern C. Co., 34 L. T. N. S. 67 D. C. A.; Shriver v. Sioux 
 City & St. Paul E. E. Co., 24 Minn. 506. 
 
 5 Ante, § 527; McMillan v. Michigan Southern, etc., E. E. Co., 16 Mich. 79; Har- 
 mon V. N. T., etc., E. E. Co., 28 Barb. 323; NewBrimswick Co. v. Tiers, 24 N. J. L. 
 (4 Zab.) 697. 
 
 8 Little V. Semple, 8 Mo. 99; Whitesides v. Eussell, 8 Watts & Serg. 44; McGregor 
 V. Kilgore, 6 Ohio, 143; Dunseth v. Wade, 2 Scam. 288. 
 
 ' CaslUay v. Young, 4 B. Mon. 265; 8 Bosw. 213; Simmons v. Law, 3 Keyes, 217. 
 
 8 Broadwell v. Butler, 6 McLean, 296; Sturgessv. Steamboat Columbus, 23 Mo. 250; 
 Carr v. Steamboat Michigan, 27 Mo. 196; Wilson v. Harry, 32 Penn. St. 270; Hatcliett 
 T. Steamer Compromise, 12 La. Ann. 783. 
 
 31 
 
482 Lxw OF Bailments. 
 
 Unless there is a contract, express or implied, to that effect, the 
 carrier is not at liberty to convey the goods by a difEerent route, or by 
 a different ship, or by a different mode of transportation, from that 
 specified in the receipt or bill of lading.^ When an unforeseen event 
 renders it impossible to fulfill the contract by the conveyance specified, 
 or when the vessel on which the goods are shipped becomes disabled on 
 the voyage, and is driven into a port of necessity where it cannot be re- 
 paired within a reasonable time so as to proceed on its way, the carrier 
 is bound to use all proper means to fulfill the contract substantially, 
 and as nearly according to its terms as may be practicable.^ If his 
 vessel is so disabled that it cannot proceed on the voyage, it is the duty 
 of the master to reship the goods by another vessel ; and where that 
 cannot be done, or where the goods are in such a damaged condition 
 that they cannot be sent forward without subjecting the owner of them 
 to a great loss, the master is justified in selling the goods, acting under 
 an urgent or inevitable necessity.' 
 
 Intermediate carriers are sometimes employed to connect difEerent 
 linos of conveyance ; being independent carriers, they are liable to the 
 owner for any injury to the goods while under their charge; being em- 
 ployed by the carrier contracting for the safe conveyance of the goods, 
 their engagement is ancillary to his ; as where goods are carried ia 
 small boats up the rapids of a river, or from the quaj' to a railroad 
 depot, on a change from water to land carriage. The persons employed 
 in the work are the agents and servants of the carrier, where the trans- 
 fer is within the scope of his contract.* The policy of the law does 
 not permit the carrier to relieve himself from responsibility by handing 
 the goods over to irresponsible tliird parties, who are merely aiding him 
 in the transportation. 
 
 § 601. The carrier's implied agreement to furnish a roadworthy 
 coach or a seaworthy vessel is enforced with great steadiness and some 
 severity.' It is his first duty to furnish a sufficient and safe convey- 
 
 1 Goddard v. Mallory, .52 Barb. S7; Maghee y. Camden & Amboy E. E. Co., 45 
 ?v^. Y. 514; .Johnson v. S. Y. Central R. K. Co., 33 N. Y. 610. 
 
 2 Williams v. Vanderbilt, 28 N. Y. 217; White v. Mann, 26 Maine, 3iU; Johnson v. 
 N. Y. Cent. E. E. Co., 33 N. Y. 610. 
 
 2 Eogers v. Murray, 3 Bosw. 357; S. C. .30 N. Y. 8S; Bryant v. Commonwealth Ins. 
 Co., 13 Pick. .543; New Eng. Ins. Co. v. Brig Sarah, 13 Peters, -jS"; Chambers v. 
 Grantzon, 7 Bosw. 414; Saltus v. Ocean Ins. Co., 12 John. E. 107. 
 
 '' Hyde v. Trent & Mersey Nav. Co., 5 Tenn R. 389; Wardell v. Mowsellyan, ;i 
 Esp. E. ('>',I3; Garsido v. Trent & Mersey N"av. Co., 4 Term R. .581; Jeremy on Car. 
 68, 09. 
 
 5 Backhouse v. Sneed, 1 Murph. 173; Lyon v. Mells, .5 East, 42s; aiilc, § 551; 
 Dauchy v. Silliman, 2 Lans. 361 ; 4 Alby. L. J. 13. 
 
Common Caekibks. 483 
 
 mice, whether by land or by water.^ The law implies an engagement 
 on his part that his coach shall be properly constructed and reasonably 
 strong and fit for the work, and that the machinery and appliances 
 used by him in securing or in handling the goods shall be sufficient for 
 the business in which it is employed ; ^ that the vessel employed in the 
 transportation is seaworthy at the commencement of the voyage ; ° and 
 well equipped and manned for the voyage.* Unless the vessel is sea- 
 worthy when the voyage comnjences,^ the owner of it cannot obtain a 
 valid policy of insurance upon it ; there being in the contract of insur- 
 ance an implied warranty on the part of the owner that the ship shall 
 be seaworthy when the risk commences — that she shall be tight, strong, 
 and in all respects fit for the intended voyage." For the same reason 
 a shipper cannot obtain a valid policy of insurance upon the goods or 
 cargo shipped by him, unless the vessel is seaworthy and duly equipped 
 and manned with a sufficient number of seamen of competent skill and 
 ability to perform the voyage ; ' there being an implied warranty on his 
 part also that the ship shall be seaworthy when the voyage commences. 
 Conceding that the implied warranty on the part of the owner of the 
 vessel obliges him to keep her in a seaworthy condition in the succes- 
 
 1 Philleo V. Sanford, 17 Texas, 227; Smith v. New Haven, etc., E. R. Co., 12 Allen 
 (Mass.), 531; as applied in favor of passengers, Hegemanv. Western R. Cor., 1.3 N. Y. 
 9; Ingalls v. Bills, 9 Metcalf R. 1; Alden v. N. y. Central E. Co., 26 N. Y. 103; Kopi- 
 toff V. Wilson, 1 Q. B. 377; Pennsylvania Co. v. Roy, 102 U. S. 451; Carroll v. Staten 
 Island E. E. Co., 58 N. Y. 126; McPudden v. N. Y. Cent. R. E. Co., 44 N. Y. 478. 
 
 2 Camden R. & Tr. Co. v. Burlce, 13 Wend. 611, 628; Frink v. Potter, 17 111. 406; 
 Redhead v. Midland R., Lai^Rep. 2 Q. B. 412; Law Rep. 4 Q. B. 379; Meir v. Penn. 
 E. E. 64 Pa. St. 225. 
 
 3 Dicl£inson v. Haslett, 3 Harris & 3. 345; Bell v. Reed, 4 Binn. 127; Hart v. Allen, 
 2 Watts, 114; Reed ^ . Dick, 8 Watts, 480; Collier v. Valentine, 11 Mo. 299; HoUings- 
 worth. v. Broderick, 7 Adolph. & Ellis, 40. 
 
 * Putnam v. Wood, 3 Mass. 481; Lyon v. Hells, 5 East, 428. 
 
 5 Howard v. Orient Mut. Ins. Co., 2 Eobt. 539; 4 Daly, 246. 
 
 ^ Barnewall v. Church, 1 Caines' R. 217, 233; Van Wickle v. Merchants', etc., Ins. 
 Co., 97 N. Y. 350; Allison v. Corn Exchange Ins. Co., 57 N. Y. 87; Talcott v. Com. 
 Ins. Co., 2 John. R. 124, 130; the ship must be properly oflBcered and manned; Draper 
 V. Com. Ins. Co., 4Duer, 234; S. C. 21 N. Y. 378; whether the vesselinsured was sea- 
 worthy when the voyage commenced is usually a question of fact; Walsh v. Wash. M. 
 Ins. Co., 32 N. Y. 427. The contract of insurance is to be enforced according to its 
 terms ; " at and from New York to Havana," covers a continuous risk, and the policy 
 is rendered void by a preliminary trial trip; Fernandez v. Gt. Western Ins. Co., 48 K. 
 Y. 571. See Brown v. St. Nicholas Ins. Co., 61 N. Y. 332. 
 
 'Silva V. Low, 1 John. Cases, 184; Law v. Hollingsworth, 7 T. R. 160; Dixon v. 
 Sadler, 5 M. & W. 414; S. C. 8 M. & W. 895; Caddock v. Franklin Ins. Co., 11 Pick. 
 R. 227; Starbuck v. N. Eng. Mar. Ins. Co., 19 Pick. 199; American Ins. Co. v. 
 Ogden, 20 Wend. 287. A policy of insurance against all marine risks, covers barratry 
 hy the master and mariners. Parkhurst v. Gloucester M. F. Ins. Co., 100 Mass, 301. 
 
484 Law of Bailmekts. 
 
 sive stages of the voyage, as far as practicable, and that the impUed war- 
 ranty by the shipper of goods on tlie vessel does not bind him so strictly 
 for acts of omission and bad faith on the part of the master not em- 
 ployed by him^ — there is still ample reason for the rule holding the 
 carrier bound to the shipper on an implied warranty that his vessel is 
 seaworthy, in a contract exempting the carrier from liability for the 
 perils of the sea ; ^ and that he will keep her m a seaworthy condition, 
 as far as practicable, on the voyage. Accordingly, we fmd it well set- 
 tled that the carrier cannot escape liability for losses, under exemptions 
 in the bill of lading, unless he uses reasonable care to guard against 
 them, and keeps his vessel in good condition, and properly equipped 
 for the voyage." 
 
 § GO'2. A railway carrier is responsible for the proper construction of 
 its road, bridges, freight-houses, and depots ; and is bound to keep them 
 in a suitable and safe condition for business.* It owes this duty to the 
 public, where its track passes over or along the highway ; ° and it is 
 quite clear that the duty may be enforced in many situations, under con- 
 tracts exempting the carrier from liability for specific perils or risks.' 
 
 ' Brioso V. Pacific Mutual Ins. Co., 4 Daly, 246; Eedman v. Wilson, 14 M. & W. 
 476; Waters v. Merchants' Ins. Co., 11 Peters, 21-3. In Howard v. Orient M. Ins. 
 Co., 2 Eobt. 539, the court, Barbour, J., holds that where these facts are found to 
 exist concurrently, the underwriter is exonerated from liability; that is to say: first, 
 where the vessel which is, or contains, the subject matter of the insurance leaves an 
 intermediate port, whether a port of call or of distress, in an unseaworthy condition; 
 second, where such condition is owing to the gross or culpable negligence of the mas- 
 ter; and third, where the property insured becomes lost or damaged, because of the 
 particular defect that rendered the vessel unseaworthy, or by some means to which 
 such defect directly contributed. ^ Christy v. Trott, 2.j Eng. Law & Eq. 202. 
 
 ^ Hazzard V. New Eng. Ins. Co., 1 Stunner, 218; 8 Peters, o^>~t; Backhouse v. Sneed, 
 1 Murph. 1Y.3. 
 
 * Birmingham V. Rochester City & B. P^. R. Co., .'jO Hun, .583; Palmer v. D. & H. 
 C. Co., 120 N. Y. 170; Pennsylvania Co. v. Roy, 102 U. S. 4.51; Merwin v. Manhat- 
 tan Ry. Co., 4s Hun, 1)08; Eequa v. City of Rochester, 4.") X. T. 12'.), holds that a 
 municipal corporation is bound to keep its streets in a passable and safe condition. 
 See Atlantic JI. Ins. Co., 48 Barb. 27; and Stedman v. Western Transp. Co., 48 Barb. 
 97, relating to the action against a common carrier of goods; 52 111. 100; 53 111. 227; 
 59 Me. 415; Brehm v. Great Western R. Co., 34 Barb. 250; Curtis v. Rochester & S. 
 R. Co., 18 N. T. 5:14; Gibson v. Erie R. Co., 63 X. Y. 440; 02 X. Y. 99, 251; 59 N. T. 
 646. 
 
 ^ Fash V. Third Avenue R. Co., 1 Daly, 14S. If a railway company negligently 
 allows a bridge over a highway to become so defective that portions of the bridge fall 
 upon persons passing below, it is liable for the resulting injury. Kearney v. London, 
 B. & S. C. R, R. Co., Law Rep. 6 Q. B. 759. 
 
 « Milton V. Hudson River S. Co., 37 N. Y. 210. This duty is enforced strictly in 
 favor of passengers: Deyo v. N. Y. Central R. Co., 34 N. Y. 9; Brown v. IST. Y. Cen- 
 tral Co., 34 X. Y. 404; Bowen v. X Y. Central R. Co., 18 X. Y. 408. ante, §§ 344, 345. 
 
Common Caeeiees. 485 
 
 Under an exemption from losses by fire, a railway carrier could not 
 escape liability for a loss caused by the fall of a badly constructed bridge 
 or by a defective track overturning or breaking up the train and ending 
 in its destruction by fire.^ 
 
 A railway carrier must also equip its road with the requisite rolling 
 stock, engines and cars, to satisfy the ordinary demands of its business, 
 so that it may send forward property received for transportation, within 
 a reasonable time. The carrier is bound to procure and employ the 
 requisite facilities ; ^ and must make a diligent use of its facilities and 
 means in carrying forward goods, which are always presumed to be on 
 the way to a market.^ 
 
 The railway carrier must also use diligence in the management of its 
 engines, its motive power ; " and in the running and conduct of its trains, 
 so as to prevent collisions and preserve the property on board against 
 losses and injury from the negligent or bad management of the busi- 
 ness.^ 
 
 § 603. It is proper to observe, in this connection, that carriers by 
 water are responsible for the use of skill and diligence in navigation — a 
 rule of great breadth, embracing infinite particulars relating to the 
 movement of their ships or vessels, directing their course and keeping 
 them in the true channel ; and requiring the use of all such precautions 
 and safeguards, to insure a prosperous voyage, as are suggested by 
 science and experience. When the vessel is propelled by steam, a high 
 degree of skill must be used in the management of the boilers and 
 machuiery ; namely, that degree of skill and vigilance which may be 
 
 1 Seger v. Town of Barkhamsted, 22 Ct. 290; 1 Cush. 451. For an injury caused by 
 the derailment of the train resulting from the giving away of rotten ties negligently 
 permitted to remain as a part of the roadbed, Rutherford v. Shreveport & H. R. E. Co., 
 41 La. Ann. 793, or from a landslide in a cut after an ordinary rain, Gleeson v. Vir- 
 ginia Midland Ey. Co. , 140 U. S. 435, the company will be liable. 
 
 2 Wibertv. New York & ErieE. Co., 12 N. Y. 245; Condict v. Grand Trunk R. Co., 
 54 N. Y. 500. See Harris v. Northern Ind. K. R. Co., 20 N. Y. 232; Tierney v. N. Y. 
 C. & H. E. E. E. Co., 76 N. Y. 305. If having all these facilities he is prevented by 
 mob violence from using them, the carrier is not liable. Geismer v. L. S. & M. S. E. 
 Co., 102 N. Y. 563. 
 
 " Siordett v. Hall, 4 Bing. E. 607. There are many decisions enforcing the duty in 
 actions brought by passengers for personal injuries, and by third parties : Johnson v. 
 Hudson E. E. Co., 20 N. Y. 65; Curtis v. Eochester & S. E. Co., 18 N. Y. 534; in- 
 volving losses to third parties; Fero v. Buffalo & St. Line R. Co., 22 N. Y. 209; 
 Swarthoutv. N. J. Steamboat Co. , 48N. Y. 209; O'Marrav. Hudson River R. R.Co., 
 35 N. Y. 445; 60 N. Y. 133; 49 HI. 234; 55 HI. 194; 51 N. Y. 476. 
 
 * Chapman v. N. H. R. E. Co., 19 N. Y. 341; 18 N. Y. 534; Eansom v. N. Y. & 
 Erie E. Co., 15 N. Y. 415; Culhane v. N. Y. C. & H. E. Co., 60 N. Y. 133; Fietal v. 
 Middlesex R. E. Co., 109 Mass. 398. 
 
48 1 J Law of Bailments. 
 
 reasonably expected from a competent and prudent engineer.^ The 
 boiler, used in a vessel employed in navigating the waters of the United 
 States, must be constructed of approved material, examined and cer- 
 tified in compliance with the requirements of the statute ; ^ and it must 
 be entrusted to the care and management of competent men. A failure 
 to comply with the statute law will raise a presumption of negligence 
 against the carrier ; and yet a compliance with the terms of the statute 
 will not relieve him from liability for losses imposed upon him by the 
 common law, on the ground of his negligence.^ 
 
 The carrier is bound to know the chaimel, and is liable for injuries 
 caused by the stranding or wreck of his vessel upon well-known sand- 
 bars, rocks, shoals and other like obstructions. Carrying goods with- 
 out any limitation upon his common law liability, he is bound to fu]- 
 low the true channel, even under circumstances of difficulty and 
 danger ; ■• and is liable for the loss ensuing from his failure to do so, 
 unless it can be justly attributed to inevitable accident without human 
 intervention ; ^ as it may be, where, without fault on his part, the vessel 
 is driven by a violent storm on the beach, rocks or shoals.^ Entering 
 or leaving a harbor, or on a river, the master not being acquainted with 
 the channel, it is his duty to take a pilot on board, where that is the 
 established law or usage ; and if he neglect this means of safety, he 
 must answer for the consequences.^ Under the common law, the pilot 
 taken on board becomes the agent of the carrier ; ' and though it has 
 been questioned whether the carrier, compelled by law to accept a 
 
 1 Steamboat New World v. King, 16 How. U. S. 469, asserting the rule in favor of a 
 passenger; also Caldwell v. New Jersey S. Co., 47 N. Y. 28^!; and Loop v. Litchfield, 
 42 N. Y. :].")1, an action against the manufacturer. 
 
 2 K. S. of TT. S. 807, 861-80(1 By the U. S. statute of 1838, § 13, the bursting of a 
 boiler, or the collapse of a flue, or other injurious escape of steam, is prima facie evi- 
 dence to charge the defendant with negligence in an action for injury to property. 
 
 3 Swarthout v. N. J. Steamboat Co., 46 Barb. 22l>; S. C. 48 N. Y. 209; Caldwell v. 
 N. J. S. Co., 56 Barb. 425; 47 N. Y. 282. 
 
 * Elliott ¥. Russell, 10 John. R. 1; McArthur v. Sears, 21 Wend. 190; Ross >. Eng- 
 lish, 2 Speer, 393; Boyle v. McLaughlin, 4 Harris & J. 291. 
 
 ^ This exception is implied in all the cases. Price v. Hartshorne, 44 Barb. 055. If 
 the carrier has expressly contracted for exemption from dangers of navigation and un- 
 avoidable accident this will cover a loss of goods arising from the vessel striking an 
 imseen obstruction and sinking, if the navigation was in its course according to the 
 usage of the trade. Hostetter v. Park, 137 LT. S. 30. 
 
 " Williams v. Grant, 1 Conn. 487; Fergusson v. Brent, 12 Md. 9; Mcilillan v. U. 
 Ins. Co., 1 Rice, 248; Keeler v. Fireman's Ins. Co., 3 Hill, 250; The William, 6 Rob. 
 Adm. 316; Slate laws on the subject valid; Cisco v. Roberts, 30 N. Y. 292. 
 
 ' Yates V. Brown, 8 Pick. 23; Williamson v. Price, 16 Martin La. 309; Snell v. Eich, 
 1 John. .105; Denison v. Seymour, 9 Wend. 9. See Atty. Gen v. Case, 3 Price, 302; 
 Mackintosh v. Slade, 6 B.& C. 057. 
 
Common Carriers. 487 
 
 licensed pilot, is answerable for his acts, it is quite clear that the car- 
 rier is bound to follow the course usually pursued by skillful pilots in 
 passing a bar or dangerous place on the river. lie is responsible for 
 the skillful navigation of the vessel.' 
 
 § 604. Does the exception cover the loss ? A common carrier is re- 
 sponsible for the goods entrusted to him, unless the same are lost or 
 damaged by agencies for which the law does not hold him answerable, 
 or by means for which the contract does not hold him bound. The 
 goods having been lost or destroyed, under circumstances not bringing 
 the loss under either of the exceptions created by law, the carrier is 
 liable for them unless he shows that the loss was caused by dangers or 
 perils for which he did not become answerable ; in other words, after a 
 loss is shown, the next inquiry is, whether it comes under the terms of 
 exception contained in the contract.^ And unless it does come within 
 the exception, the carrier is liable. "We have already considered 
 many of these exceptions, and the effect of them, in the carrier's 
 contract.' 
 
 § 605. On the axiom that the greater includes the less, the carrier is 
 liable for all losses by thefts committed by strangers, and for embezzle- 
 ment by the master or crew.* It is not necessary to show that the car- 
 rier was himself guilty of negligence ; he engages for the safety of the 
 goods, against force, violence and fraud ; * and he is liable for them 
 when, being provisions, they are consumed by the passengers, as the 
 only means of subsistence left to them on a prolonged voyage.^ On 
 account of his liability for losses by the misconduct and fraud of the 
 master, the ship-carrier is allowed to obtain an insurance on the vessel 
 and cargo against losses by thieves or by the barratry of the master, or 
 the master and crew ; and the undervsrriters must then answer for their 
 
 1 Collier v. Valentine, 11 Mo. 299, 310; Ready v. Steamboat Highland Mary, 17 Mo. 
 461. Although the law of this State compels the master of a vessel to take a pilot, this 
 fact does not exonerate the vessel from liability for damages for a collision which 
 was entirely the result of the gross mismanagement of the pilot. The China, 74 
 IT. S. 53. 
 
 ^Watkinson v. Laughton, 8 John. 213; Merritt v. Earle, 31 Barb. 38; S. C. 29 
 N. T. 11.5; 52 Barb. 489; 45 N". T. 514; 12 N". T. 99; 48 N. T. 655; ante, § 597. 
 
 ' An insm'ance company having paid a loss by fire, on goods in a carrier's hands 
 without any contract of exemption, may recover of the carrier; ^iEtna Ins. Co. v. 
 Wheeler, 5 Lans. 480; S. C. 49 N. T. 616; ante, §§ 5.52-568, 586-590. 
 
 1 Schieffelin v. Harvey, 6 John. 107; Morse v. Slue, 1 Vent. 190, 238; Ely v. Ehle, 
 3 K. T. 506, 509. 
 
 s Forward V. Pittard, 1 T. E. 27; Barclay v. Cuculla y Gana, 3 Douglas, 389; Wat- 
 kinson v. Laughton, 8 John. 213; ante, § 547. 
 
 * Moses V. Sun M. Ins. Co. 1 Duer, 159. 
 
488 Law op Bailments. 
 
 thefts and pilferings, and for thefts by outside parties, under this most 
 remarkable contract of moral insurance.^ 
 
 § 606. When a common carrier, >:. g., an express companj-, receives 
 goods to carry from one city to anotlier and is paid tire freight for the 
 entire distance, and itself contracts with other carriers for the transpor- 
 tation of the goods in bulk, and sends its own agent in charge of the 
 goods, the actual carriers furnishing the conveyance are liable to the 
 owner for losses resulting from a failure in due care and diligence, or 
 from wrongful acts committed by themselves or by their agents and 
 servants ; but the owner, having agreed with and delivered the goods 
 to the express company, can only recover against the carrier employed 
 by it, in virtue of and upon the contract between the two companies.^ 
 The express company under this contract for the conveyance and de- 
 livery of the goods is more than a forwarder; ^ it is a common carrier; * 
 and its contract does not usually specify the route or mode of convey- 
 ance, but leaves the company free to fulfill its agreement in the usual 
 manner.'^ 
 
 § 607. It sometimes happens that a common carrier is intrusted with 
 some agency relating to the goods carried by him ; as where he is to 
 carry the goods to market and sell them and bring back the proceeds, 
 the freight covering the whole service. Here he is liable for the money 
 as a carrier, on the return trip, and from the time he receives it." 
 When the master of a vessel is made the consignee of a cargo for sale 
 and returns, the ship-owners receiving the freight, and the master com- 
 missions for his trouble, the master acts as the agent of two distinct 
 prmciiials ; namely, as the agent of the ship-owners in stowing, carrying 
 and delivering the goods, and as the agent of the shipper in making 
 sales and returns.' It depends upon the understanding of the parties, 
 or upon the general custom, whether the master is to be considered as 
 acting for himself or for the owners of the vessel. Charged by the bill 
 of lading with the duty to collect back freight, on delivering goods, the 
 
 1 Kendrick v. Delafleld, 2 Caines, (>7; Amer. Ins. Co. of X. Y. v. Bryan, 1 Hill, 
 25; S. fl. 20 Wend. 5(;3; Ante, § .589; Atkinson v. Great Western Ins. Co., 65 \. Y. 
 531. 
 
 2 Stoddard v. Long Island R. Co., 5 Sandf. 180; Merchants' Bank of Boston t. N. .T. 
 Steam Nav. Co., 6 How. U. S. :!44; Merrick v. Brainard, 38 Barb. 574. 
 
 8 The express company may act as a mere forwarder. Goodrich \. Thompson, 4 
 Robt. 75 ; S. C. 44 N. T. 324. 
 * Belger V. Dinsmore, 51 X. Y. KiO. 
 6 See White v. Ashton, 51 X^ Y. 280. 
 •5 Kemp V. Coughtry, 11 John. K. 107. 
 ' Williams v. Xichols, 13 Wend. 58. See also Labar v. Taber, 35 Barb. 305. 
 
Common Caeriees. 489 
 
 owners of the vessel are liable for his neglect.^ The general custom 
 justifies a forwarder, as it does one carrier receiving goods from anotlier, 
 in advancing the freight already earned and collecting the whole freight 
 on delivery of the goods to the consignee.^ 
 
 When a carrier, an express company, receives a package of goods with 
 instructions to collect, or marked C. O. D., specifying the amount in 
 money, it assumes the duty of carrying and delivering the goods and 
 collecting the amount specified ; it acts as a common carrier ; ^ it dis- 
 charges its duty in the same manner as other carriers ; ^ and it assumes 
 the further duty of collecting the money pursuant to the order endorsed 
 upon the package.' Receiving notes and bills of exchange for convey- 
 ance, and for collection at a distant point by suit, the company must 
 fulfill the terms of the entire contract ; it must follow the directions 
 received with the securities, and have them put in suit without delay.* 
 It is liable as a collecting agent.^ 
 
 § 608. We have alluded to the carrier's duty to carry forward the 
 goods received by him, with diligence and dispatch. By implication of 
 law and without any special agreement on the subject, he is bound to 
 transport and deliver the goods within a reasonable time. What shall 
 be deemed reasonable time must evidently depend very much upon the 
 circumstances of the case, and the causes interrupting the voyage or 
 delaying the arrival of the carrier. The freezing of the river, or of the 
 canals, may delay him until the opening of the navigation in the spring. 
 Stress of weather may compel him to stop by the way for repairs. An 
 embargo may suspend his duty until it is removed by some act of gov- 
 ernment. If he carries by rail, an incendiary may burn down a bridge, 
 a mob may tear up the tracks, or disable the rolling stock or interpose 
 irresistible force or overpowering intimidation. In these and like cases 
 the carrier is excused for the reasonable and necessary delay to which 
 he is subjected ; he is not discharged from his duty as a carrier ; but 
 the only duty resting upon him under the circumstances is to use 
 reasonable efforts and due diligence to overcome the obstacles thus 
 interposed, and to forward the goods to their destination." 
 
 1 Lee V. Salter, Hill and Denio, 163 ; Davison v. City Bank, 57 N. T. 81, and cases 
 there cited. Monteith v. Kirkpatriok, 3 Blatehf. 279; Bissel v. Price, 16 111. 408; 37 
 Barb. 236. The course of business, i e. a general custom, is considered in determin- 
 ing the contract or understanding of the parties; Cooper v. Kane, 19 Wend. 386; 
 Dawson v. Kittle, 4 Hill, 107. 
 
 2 Weed T. Barney, 45 N. T. 344; Van Winkle v. Adams Ex. Co., 3 Kobt. 59. 
 = CoUender v. Dinsmore, 55 N. Y. 200; Tooker v. Gormer, 2 Hill, 71. 
 iPalmer v. Holland, 51 N. T. 416; Frank v. Adams Ex. Co., IS La. Ann. 279. 
 ^ Holt V. Eoss, 54 N". Y. 472. 
 
 « Geismer v. Lake Shore & Mich. S. Ey. Co., 102 N. Y. 563; Wibert v. N. Y. & E. 
 
490 Law of Bailments. 
 
 Being arrested by the ice witliout any fault on his part, he is bound 
 on the opening of the navigation to proceed with diligence to complete 
 the transportation and deliver the goods.^ Being arrested by an em- 
 bargo or delayed by some act of government, suspending but not dis- 
 solving the contract, his duty revives as soon as the cause of the inter- 
 ruption is removed ; and he must fulfill the contract.^ If his vessel 
 be injured by the perils of the sea, and remain capable of being made 
 seaworthy within a reasonable time, he is bound to repair and proceed 
 on his voyage with no unnecessary delay. ^ 
 
 An interruption of the navigation by freshets or by low water will 
 excuse delay, under the usual or implied contract, so long as it con- 
 tinues ; and it will not excuse a delay where the contract prescribes the 
 time for the transportation and delivery of the goods.* 
 
 In the absence of any agreement fixing the time within which the 
 goods are to be carried forward, the cai'rier is entitled to what may be 
 deemed a fair and reasonable time, considering the usual course of the 
 business,^ and the actual circumstances existing at the time the property 
 is received for transportation.^ There being no cause for delay, it must 
 be sent forward presently, with all reasonable expedition.' 
 
 R. R. Co., 12 X. T. -'4.j; Conger v. Hudson River R. R. Co., 6 Duer, 375. If the 
 goods are to be transported by water, and on account of the state of the river cannot 
 be taken at once by that means to their destination, the carrier is not bound to for- 
 ward tliem by land, and is not liable for the delay if he has exercised due diligence 
 and the goods rdtimately arrive safely. Silver v. Hale, 2 ilo. App. .5.">7. If the goods 
 are to be carried by rail, and a flood has carried away a, bridge on his line, he is not 
 bound to seek another route, but only to use due diligence in getting the goods past 
 the obstruction. American Express Co. v. Smith, 33 Ohio St. .511. If perishable 
 goods are being carried by steamer to a distant port and from any cause the machinery 
 becomes disabled during the voyage so as to prevent further progress by steam, it 
 becomes a question of fact whether, under all the circumstances, considering the 
 character of the remainder of the cargo, the direction of the winds, the relative dis- 
 tance from the port of departure and destination, the carrier is justified in complet- 
 ing the voyage by sail instead of returning to the place of departure. Sherman v, 
 Inman Steamship Co., 26 Hun, 107. 
 
 1 Bowman v. Teal!, 23 Wend. 300; Tai-sons v. Hardy, 14 Wend. 21."i; Wallace v. 
 Vigus, 4 Blackf. R. 200. 
 
 - Hadley v. Claik, 8 Term K. 2"j9; Evans v. Hutton, r> Scott's New R. 670; Palmer 
 \-. Lorillard, 16 John. 348. ^ Herbert v. Hallett, 3 John. Cases, 93. .J3S. 
 
 * Wallace v. Vigus, 4 Blackf. (Ind.), 260; Harmony v. Bingham, 12 X. Y. 99. Tlift 
 principle is the same as it is where the navigation is interrupted Ijy the freezing of 
 the canals or rivers: Parsons v. Hardy, supra; and Bowman v. Teal], supra; or by 
 delays in transportation over connecting roads. Pereira v. Cent. Pacific R. R. Co., 66 
 Cal. 92. 
 
 5 Stedman v. Western Transp. Co., 48 Barb. 97; ante, § 0:)2; Raphael v. Pickforil, R 
 Scott's 'New R. 478. 
 
 « Wibert v. iST. Y. & Erie E. R. Co., 12 X. Y. 24.J; Michaels v. X. Y. Central E. K. 
 
Common Caeeieus. 491 
 
 § 609. The carrier receiving goods, with orders to sliip immediately, 
 is answerable for them from the time of their receipt ; ^ and pending any 
 necessary delay .^ Does his agreement to carry and deliver without 
 delay increase his liability ? It would seem not, since that is no more 
 than a promise to fulfill the duty imposed upon him by law." And yet 
 the carrier may bind himself by a special contract to carry forward the 
 goods at once, or by a specified train, or withui so many days, or in 
 specified cars : ^ while independent of a special agreement, the carrier is 
 not bound to use extraordinary efforts to send forward the goods, or to 
 incur extra expense in order to send them forward.^ lie discharges his 
 duty by sendmg them forward ia their regular order ; ° giving a prefer- 
 ence to perishable goods, Uke fruit and vegetables.' 
 
 The carrier is not liable for damages arising from a delay caused by 
 an extraordinary accumulation of freight, or by a railroad collision 
 without fault on his part, or by the negligence of another comj)any hav- 
 ing the right of way.^ And he is liable for a delay caused by his own 
 negligence, or failure in duty, or by the negligence or wrongful acts of 
 his agents and servants ; as where he makes a contract to carry goods 
 without having the facilities to do so, or where the transportation is 
 delayed by a strike among the engineers on the road.^ 
 
 Co., 30 N". Y. 564; Read v. Spaulding, 30 N. T. 630; Raphael v. Pickford, 2 D. N. S. 
 916; 5 M. & G. 551; 6 Scott's N. R. 4'78; Hales v. London & Northwestern K. Co., 
 4 B. & S. 66; Onnsby v. Union Pacific Ey. Co., 2 McCrary, C. Ct. 48; Zinn v. N. J. 
 Steamboat Co., 49 N. T. 442, 444. 
 
 1 Clark V. Needles, 25 Penn. St. 338; O'Neil v. N. Y. & H. R. R. Co., 60 N. Y. 138. 
 
 2 Western, etc., Co. v. Newhall, 24 111. 466. 
 
 8 Price V. Hartshorn, 44 Barb. 655, 666; S. C. 44 N. Y. 94, 99; Ward v. N. Y. Cent. 
 R. E. Co., 4*7 N. Y. 29, 33. 
 
 * Pickford V. Grand Junction R. Co., 12 M. & W. 766; Harris v. Northern Ind. R. R. 
 Co., 20 N. Y. 232; Harmony v. Bingham, 12 N. Y. 99; Beebe v. Johnson, 19 Wend. 
 500; 47 N. Y. 525. 
 
 6 Briddon v. Great Northern R. Co., 28 L. J. Exch. 51; 32 L. T. ;U. 
 
 6 Acheson v. N. Y. C. & H. R. E. Co., 61 N. Y. 652. 
 
 'Marshall v. N. Y. Central R. Co., 45 Barb. 502; S. C. 48 N, Y. 660; Peet v. 
 Chicago, etc., Ey. Co., 20 Wis. 594; Tierneyv. N. Y. C. & H. E. E.R.Co.,76N. Y. 305. 
 
 8 Taylor v. Great Northern R. Co., 14 L. T. N. S. 363; 1 L. R. C. P. 385; Conger v. 
 Hudson River E. Co., 6 Duer, 375; 61 N. Y. 652. 
 
 ' Condict V. Grand Trunk E. Co., 54 N. Y. 500; S. C. 4 Lans. 106; Blackstock v. 
 N. Y. & ErieE. Co., 20 N. Y. 48. In this case the employees of the defendant 
 merely refused to discharge their duties or to work, or had suddenly abandoned the 
 defendants' service, offering no violence and causing no forcible obstruction to its 
 business. , But where the delay does not come from the strike, that is, from the re- 
 fusal of the employees to work, but from their violent and unlawful conduct after the 
 strike in preventing other employees from working, the delay is excused. Geismer v. 
 Lake Shore & Mich. S. Ry. Co., 102 N. Y. 563; Pittsburgh & C. E, E. Co. v. Hogan, 84 
 111. 36; Pittsburgh, C. W. L. Ry. Co. v. Hallowell, 65 Ind. 188; Rennet v. L. S. & M. S. 
 
492 Law of Bailments. 
 
 § 610. On a total failure to deliver, the carrier is ^rraia/aae liable 
 for the market price of the goods at the time and place for dehvery, 
 deducting the freight to be paid for the transportation.^ Nothing less 
 will cover the damages sustained by the shipper ; and where the goods 
 have a market value at the place of destination, the rule is very plain 
 and easy of application ; it gives the shipper the value of his prop- 
 erty at the place where the carrier agreed to deliver it, with interest 
 from the time for delivery, less the freight due to the caiTier under the 
 contract.- A modification of the rule has been allowed, where the 
 goods are lost before the ship sails, or soon after, without fault on the 
 part of the carrier, fixing the damages at the value of the goods at the 
 place where the loss occurs." 
 
 ^Vhat is the measure of damages against a carrier for his delay in 
 sending forward the goods ; e. //., where he negligently delays to carry 
 them forward, and the market in the meantime falls ? The measure of 
 damages here is the difference between the value of the goods at the 
 place of destination when they ought to have been delivered and when 
 they were delivered. By his delay the carrier prevents a sale of the 
 goods, and where he does this negligently it is only just that he should 
 pay the difference between the market price at which the owner might 
 have sold his goods, had he received them in due time, and the lower 
 price at which he was compelled by the delay to sell them.* The rea- 
 
 r.. E. Co. , Am. & Eng. R. Cas. .391 ; I. ct W. L. R. R. Co. v. Juntzen, 10 Bardwell, 20,5 ; 
 LittlpT. Fargo, 4:5 Hun, 233; Missouri P. Ry. Co. v. Levi, 14 Southwestern Rep'r, 1062. 
 
 1 Bracket v. McNair, 14 JoLn. R. 17U; O'Hanlon v. North R. R. Co., 6 Best & 
 Smith, 484. See GrifBn v. Colver, 16 N. T. 48!); in ijoint exactly; Sturgess v. Bissel, 
 46 N. Y. 402; Spring v. Haskell, 4 Allen, 112; McGregor v. Kilgore, 6 Ohio, S.JS; 
 Laurent v. Vaughan, .30 Yt. 90. 
 
 2 Yan Winkle v. IT. S. M. Steamship Co., 37 Barh. 122 ; Cushing v. Wells, Fargo & 
 Co., 98 Mass. .550; King v. Sliepherd, 3 Story, 349; Micliigan S. ct X. L R. R. Co. v. 
 Castor, 13 Ind. 104; Rice v. Ontario Steamboat Co., oO Barb. .584; Bridgman v. 
 Steamboat Emily, 18 Iowa, .509; Thomas, etc., Manuf. Co. v. Wabash, etc., Ry. Co., 
 C2 Wis. 642; Xiiilrl v. Wells, 11 Wis. 407; The Nith, 3ii Fed. Rep. 86. 
 
 ^ Lakeman v. Grinnell, ;5 Bosw. 025. 
 
 " Ward V. N. Y. Central R. R. Co., 47 N. Y. 29; Cutting v. Grand Trunk R. K. 
 Co., 13 Allen, .381; Sisson v. C. * T. E. E. Co., 14 ilicli. 489; Collard v. S. E. E. 
 Co., 7 Hurl. * N. 79; Wilson v. Lancashire & York. R. Co., 99 Eng. C. L. 632; Lau- 
 rent V. Yaughan, 30 Vt. 90; Feet v. Chicago & N. R. R. Co., 20 Wis. .594; Sherman 
 V. Hudson River E. R. Co., 64 N". Y. 2.54; East Tenn., etc., R. R. Co. v. Hale, 85 
 Tenn. 09; Atlanta, etc., R. R. Co. v. Texas Grate Co., 81 Ga. 602; East Tenn., etc., 
 R. R. Co. V. Johnson, 85 Ga. 497; St. Louis, etc., Ey. Co. v. Phelps, 46 Ark. 485; 
 Devereux v. Backley, 34 Ohio St. 16. The rule justly applies where the goods are on 
 their way to a market, and the owner loses in consequence of the delay. Ingledew v. 
 Northern R. R. Co., 7 Gray (Mass.), 80: Wilson v. Lancashire & Y. E. Co., 9 C. B. 
 K. S. 632; Scott v. Boston & N. O. Steamship Co., 106 Mass. 468. The owner or 
 
Common Caeeibrs. 493 
 
 son of the rule becomes more apparent, if not more just, where the 
 owner of the goods makes a sale of them, deliverable provided they 
 arrive in due course, and loses the sale by the carrier's inexcusable delay ; ^ 
 or finally receives the property injured or depreciated by the delay.^ 
 
 The carrier's failure to transport and deliver within a reasonable time 
 is a breach of contract ; it is not a conversion, and it is not equivalent 
 to a conversion of the goods ; " the owner cannot therefore refuse to 
 receive them on account of the inexcusable delay, and recover their full 
 value ; * unless the delay or negligence results in a loss of the goods,^ 
 or destroys their nature and value." 
 
 The carrier is held liable for damages caused by his delay in carry- 
 ing and delivering a part of the machinery for a mill, whereby the mill 
 is compelled to stand idle ; or for his delay in delivering goods that are 
 under a contract of sale ; where he receives the goods or chattels with 
 knowledge of the contract, or purpose for which they are to be used. 
 He is bound to pay the damages caused by his delay with knowledge 
 of the circumstances,' including the rental value of the mill that stands 
 idle by the delay, and the loss on the defeated sale.^ 
 
 shipper of the goods must be indemnified for the injury he sustains by the delay — the 
 natural and proximate injury arising from the inexcusable delay. Hales v. London 
 & Northwestern E. Co., 4 B. & S. 66; Benson v. N. J. E. & Tr. Co., 9 Bosw. 412; 
 Black T. Baxendale, 1 Exch. 410. Notice to the carrier that the goods are sent to 
 meet the demands of a market or of a business that will not bear delay, may affect 
 the amount of the damages ; since the carrier' s delay may require some new disposi- 
 tion to be made of tlie goods. Black v. Baxendale, supra, 4 B. <& S. 66; St. Louis, 
 etc., Ry. Co. v. Mudford, 48 Ark. 502. If after such notice the carrier agrees to fur- 
 nish cars to be loaded in time to be forwarded to such market by a day specified and 
 fails to perform his contract, he is liable for such special damages as result from a 
 failure to get the goods to market on that day. Hamilton v. Western N. C. R. E. 
 Co., 96 N. C. 398. A delay in carrying and delivering a model, for which a prize has 
 been offered, so as to deprive the shipper of it of his chance to obtain the prize, sub- 
 jects the carrier to the cost of making the model, and it is thought he ought also to 
 compensate the shipper for his loss of the chance thus taken from him. Watson v. 
 Ambergate N. & B. E. 15 Jur. 4-18; Adams Ex. Co. v. Egbert, 36 Penn. St. 360. 
 
 1 Deming v. Grand Trunk R. Co., 48 N. H. 455. 
 
 2 111. Central R. R. v. McClellan, 54 111. 58. 
 
 s St. Louis, etc., Ey. Co. v. Mudford, 44 Ark. 439. 
 
 * Scovill V. Griffith, 12 N. T. 500; Hawkins v. Hoffman, 6 Hill, 586. 
 
 5 Ellis T. Turner, 8 Terra R. 331 ; Fouldes v. Willoughby, 8 Mees. & Wels. 540. 
 
 ^ Smith v. Griifith, 3 Hill, 333, mulberry trees; Kent v. Hudson E. E. E. Co., 22 
 Barb. 278; Hackett v. Boston, etc,, R. E. Co., 35 N". H. 390; Gait v. Archer, 7 Gratt. 
 (Va.) 307; Shaw v. S. E. Co., 5 Rich. (S. C.) 462. 
 
 ' Hadley v. Baxendale, 9 Exch. 341; S. C. 26 Eng. Law * Eq. 398; Fletcher v. Tay- 
 leur, 17 C. B. 21; Davis v. C. H. & D. E. E. Co., 1 Disney, 23; Priestly v. Northern 
 Ind. & C. E. Co., 26 111. 205; 111. Cent. R. Co. v. McClellan, 54 111. 58. 
 
 8 See leading case of Griffin v. Colver, 16 N. Y. 489. 
 
494 Law op Bailments. 
 
 § ('ill. The mode of proving a loss or damage by the carrier's unrea- 
 sonable delay must depend upon the circumstances. A total failure to 
 deliver is easily proved, by showing that the goods have not been 
 received.^ A long delay may also be proved, with equal facihty.^ An 
 unusual or unnecessary delay may sometimes be proved by showing the 
 distance, the mode and course of business, and the time usually con- 
 sumed in carrying goods over the route.' The effect of the proof may 
 also depend upon various circumstances ; such as the nature of the 
 property, the season of the year, or the state of the market.* 
 
 § Glii. When it becomes necessary in a storm at sea to lighten the 
 ship, by throwing overboard a part of her lading, the necessity excuses 
 the act ; the carrier, as such, is not liable for the loss, but is bound, in 
 common with tlie others whose property has been thereby saved from 
 destruction, to contribute to the loss.^ The mode of ascertaining the 
 amount of each person's contribution varies in different countries ; it is 
 usually done upon the ship's arrival at the port of discharge, by ascer- 
 taining the net value of the ship, freight and cargo, as if nothing had 
 been lost ; these are to be valued at the inice they would fetch at the 
 port of dischai-ge, and the net amount, after deducting all charges, is 
 the sum which is subject to the contribution. If a part of the apparel 
 or tackle of the ship is sacrificed for the common benefit and safety, it 
 is to be included i)i the loss for which compensation is to be made. As 
 to the goods and property lost, the practice is to estimate them, as well 
 as those saved, at the price they would have brought at the port of dis- 
 charge on the ship's arrival there, deducting freiglit thereon. Upon 
 tliis footing a general average is made, so as to give to the owner of the 
 property sacrificed for the general safety an amount pro rata equal to 
 that realized by the owners of the residue saved." 
 
 1 Woodbury v. Frink, 14 HI. 27!); Tucker v. Cracklin, 2 Stark. 275; GrifBth v. Lee, 
 1 C. A' P. 110; Mayhew v. Nelson, 6 (\ & P. 5.S. 
 
 2 Nuild V. Wells, 11 Wis. 407; Western, etc., Co. v. Newball, 24 111. 466. 
 
 3 Michigan, etc., E. R. Co. v. Day, 20 111. 37."i; Acheson v. N. Y. C. & Hudson R. 
 K. Co., 61 N. T. 0.-2. 
 
 * Keeney v. Grand Trunk R. Co., 47 N. Y. r,2r,\ S. C. 59 Barb. 104; 48 N. Y. 660; 
 .30 N. Y. .504, (WO; Falvey v. Northern, etc., Co., l.j Wis. 129; ?,0 \t. 90. 
 
 5 Ante, §§ oXi, .■»0C. The requisites for a general average charge are (1) some peril 
 common to ship and cargo, (2) some sacrifice or expense voluntarily incurred by ciio 
 part interest for the safety of the whole beyond that chargeable to it by law, and (3) 
 success. Bowering v. Thebaud, 42 Ft;il. Eep. 774; Bernard v. Adams, 10 How. 
 (U. S.) 270. One whose negligence has made the sacrifice necessary cannot claim 
 contribution. Snow v. Perkins, .39 Fed. Eep. 3.34; Phipiw v. The Xicanor, 44 Fed. 
 Rep. .">04. Sacrifices incurred where there was no peril do not give a right to contri- 
 bution. The Star of Hope, 9 Wallace, 203. 
 
 " Strong V. N. Y. Firemen Ins. Co., 11 .John. R. .323, 3:"'.2. The rule applies so as to 
 
Common- Caeeiers. 495 
 
 When a general average is fairly settled in a foreign port, and the 
 insured is obliged to pay his proportion of it, he may recover the amount 
 from the insurer, though the average may have been settled differently 
 abroad from what it would have been in the home port.^ The situation 
 does not admit of any delay ; it is the master's dutj' to have an adjust- 
 ment made upon his arrival at the port of destination, and upon its 
 being completed he has a lien upon the cargo to enforce the payment 
 of the contribution.^ 
 
 § 613. A common carrier does not in form undertake to answer for 
 the fraud or for the wrongful acts of third persons ; but his engagement 
 for the safe conveyance and delivery of goods sometimes obliges him 
 to answer for them notwithstanding a loss by the fraud, or by the tor- 
 tious acts of third parties ; as where the goods are obtained from him 
 by the use of false pretenses ; " or where the goods are injured by the 
 negligence of a third party employed to assist in the transportation ; * or 
 where they are illegally and wrongfully seized by a public officer ; ^ or 
 where an officer unlawfully prevents him from fulfilling his contract." 
 The carrier in these cases has a right of action against the wrong-doer, 
 and may recover the damages sustained by him ; he may bring his ac- 
 tion before he has paid the loss ; ' or may pay for the property and re- 
 cover its value of the party wrongfully taking or detaining it.* The 
 law gives him the action on account of his liability under the contract. 
 
 On the same ground, and on account of his claims for advances and 
 
 cover an injury to a part of the cargo caused in cutting away the mast; Maggrath v. 
 Church, 1 Caines' E. 196, 214; as to freiglit not earned, see Hathaway v. Sun M. 
 Ins. Co., 8 Bosw. 33, 74; as to a stranding of the vessel with a view to save her, see 
 Bradhurst v. Col. Ins. Co., 9 John. R. 9; and Columbia Ins. Co. v. Ashby, 13 Peters, 
 831; Marshall v. Garner, 6 Barb. 394; ante, §§ 537, 596. 
 
 1 Depau V. Ocean Ins. Co., 5 Cowen K. 63. 
 
 2 Walpole V. Ewen, Park on Ins. 565, 566; 11 John. E. 336. 
 
 3 Powell V. Myers, 26 Wend. 591; Stephenson v. Hart, 4 Bing. 476; Price v. Oswego 
 & S. R. Co., 50 N. Y. 213. See Houston, etc., Ey. Co. v. Adams, 49 Texas, 748; 
 McEntee V. N. J. Steamboat Co., 45 N. T. 34; Southern Express Co. v. Van Meter, 
 17 Fla. 783. The carrier is liable for an unexplained non-delivery. Dexter v. S., B. & 
 X. T. E. Co., 42 N. T. 326. 
 
 * Merrick v. Brainard, 38 Barb. 574, reversed on other grounds ,in the Court of 
 Appeals; 34 K. T. 208; White v. Bascom, 28 Vt. 268; Steamboat Parmer v. McCraw, 
 26 Ala. 189. 
 
 5 Groslin V. Higgins, 1 Campb. 431; Edwards v. White Line Transit Co., 104 Mass. 
 159; Bennett v. American Express Co., 83 Me. 236. 
 
 " Evans v. Hutton, 5 Scott, N". E. 670; Eowland v. Miln, 2 Hilton, 150. 
 
 ' White V. Bascom, supra. 
 
 " Hudson Eiver E. R. Co. v. Lounsberry, 25 Barb. 597. The carrier may return 
 money received on a parcel marked C. O. D., the transaction turning out a fraud. 
 Herrick v. Gallagher, 60 Barb. 566. 
 
496 Law op Bailments. 
 
 freight, the carrier has an insurable interest in the goods in his hands, 
 and may get them insured or may bargain for tlie benefit of an exist- 
 ing policy on the property; to the extent of the fair value of the 
 property.^ Unless he limits his liability, the carrier is himself an insurer 
 of the goods received by him for transportation ; and hence a company 
 that insures the owner against loss on the goods and pays the same 
 may recover the amount of the carrier.^ The law subrogated the in- 
 surer into the position and rights of the shipper." 
 
 § 614. When a carrier brings an action against a third party for the 
 wrongful taking or detention or conversion of goods that were bailed to 
 him for transportation, he recovers the property in replevm, or the 
 value of the property in an action of trover ; * and when he brings an 
 action in the nature of trover against the general owner, based on his 
 lien or special property in the goods, he recovers only to the extent of 
 his special interest ; he recovers what belongs to him, and no more.^ 
 But where a consignee obtains possession of the goods by a false and 
 fraudulent promise to pay the freight as soon as the delivery is complete, 
 the delivery is voidable, and the carrier may maintain an action of re- 
 plevin for the goods.* 
 
 1 Mercantile M. Ins. Co. v. Calebs, 20 N. T. 173; Savage v. CornExchange Ins. Co., 
 '■jtj X. Y. (j.j.j; 3 Sumner, 140; Chase v. Washington Marine Ins. Co., 12 Barb. .jO.'); 
 Deforest v. Fulton Ins. Co., 1 Hall, 84; Plifflnix Ins. Co. v. Erie & Western Transp. 
 Co., 117 U. S. .312. 
 
 2 /Etna Ins. Co. v. Wlieeler, 5 Lans. 480; S. C. 49 N. T. 616. 
 
 'Newcomb v. Cincinnati Ins. Co., 22 Ohio St. 382; Home Ins. Co. v. Northwestern 
 Packet Co., 32 Iowa, 223. This -right of subrogation is only a derivative one, and 
 comes solely from the assured, and can only be enforced in his right. If the assured 
 has no right whicli he can transfer to the insurer, then the insurer can have no subro- 
 gation, and cannot take tlie place of the assured for the purpose of enforcing the lia- 
 bility of the wrong-doer for the loss. Hence, if by the contract between the owner of 
 goods and the carrier, the latter was to have the benefit of the insurance taken out by 
 the former, and the insurer has paid to the owner the entire loss sustained by him 
 arising from a destruction of the goods while in the custody of the carrier, and has 
 taken an assignment of the owner's claim against the carrier, there is no right of sub- 
 rogation, and no right of action by the insurer against the carrier. Piatt v. Richmond, 
 York liivrr A Chesapeake E. E. Co., 108 N. Y. 3.58; Phoenix Ins. Co. v. Erie & Western 
 Transp. Co., 117 U. S. 312. 
 
 * Greene v. Clark, 12 X. Y. 343; Young v. Kimball, 23 Penn. St. 193; Waterman t. 
 Robinson, 5 Mass. 303; Propeller Commerce, 1 Black. 574; Hagerstown Bank v. 
 Adams Ex. Co., 4."j Penn. St. 419, bank, bills destroyed; Buck v. Remsen, 34 X. T. 
 383. 
 
 ■"' Van Bokkelin V. IngersoU, .'i Wend. '■)\'i. ><■■' Wheeler \. McFarlaii.l, i:) Vren;!. 
 31;;; 10 X. Y. ."..07; Parish v. Wheeler, 22 X. Y. 494; Alt v. AVeidenburg, 6 Bos'.v. 
 17<;; Kissam V. Roberts, 6 Bosw. 154. 
 
 Bigelow V. Heaton, 6 Hill, 43; S. C. 4 Denio, 498; Golding v. Shea, 103 Mass. 360. 
 
Common Caeeibes. 497 
 
 The contract between the shipper and the carrier of goods gives rise 
 to some important rules of law and rules of evidence. In the first place, 
 the contract, being made in writing, cannot be varied by parol evidence.* 
 In the second place, the carrier derives his right to the custody and 
 possession of the goods from the shipper, and cannot therefore on hi i 
 own account dispute the title of his bailor, to whom he stands in a 
 relation like that of a tenant to his landlord : — a rule which applies in 
 all cases where the bailee seeks to avail himself of the title of a third 
 person for the purpose of keeping the property himself, and to all cases 
 where the bailee has not yielded to a paramount title in another ; '^ and 
 does not apply where the property has been taken from the carrier or 
 bailee by due process of law, or where the bailee has surrendered it to 
 the true owner on demand.^ The contract of bailment is stiong prima 
 facie evidence of the bailor's title, and it is not conclusive.^ If goods 
 be taken from a carrier by due process of law, it is his duty to give 
 his bailor immediate notice of such taking.^ And if the bailee in a 
 proper action is compelled to pay. for the property to a party having 
 the true title, he cannot be held answerable for it again to his bailor, 
 who was duly notified of the suit.'' 
 
 It is a matter of discretion with the bailee, whether he will stand 
 upon the title of his bailor or yield to the newly asserted and paramount 
 
 1 Hinckley v. N. T. C. & H. E. R. R. Co., 56 N. Y. 429; Long v. N. T. C. E. E., 50 
 K. T. 76; 11 Cush. 102; White v. Ashton, 51 K. T. 280; Germania Fire Ins. Co. t. 
 Memphis & Charleston E. E. Co., 72 N. Y. 90; Hill v. Syracuse, Binghamton & S. 
 Y. E. E. Co., 73 N. Y. 351. 
 
 2 Gtoslinv. Biraie, 7 Bing. 339; Hall v. Griffin, 10 Bing. 246; Benton v. Williinson, 
 ISVt. 186. 
 
 ' Bates V. Stanton, 1 Duer, 79; Hardman v. Wilcock, 9 Bing. E. 382; King v. Eich- 
 ards, 6 Whart. 418; Western Transp. Co. v. Barber, 56 N. T. 544; Biddle v. Bend, 6 
 Best & Smith, 224; ante, §§ 353, 362. That the property was taken from the posses- 
 sion of the carrier by one having title paramount to that of the consignor is a good 
 defense to an action by the consignee or indorsee of the bill of lading for a non-delivery 
 of the property. See N"at. Bank of Commerce v. Chicago, B. & K. E. E. Co., 44 Minn. 
 224, 236. 
 
 That the taking of the property from the possession of the carrier by due process of 
 law is a good defense to an action by the consignor for non-delivery, see McVeagh v. 
 Atchison, T. & S. F. E. E. Co., 3 N. M. 205; Jewett v. Olsen, 18 Oregon, 419; Liv- 
 ingston V. Miller, 48 Hun, 2.32. 
 
 * Berkley v. Watling, 7 Adol. & Ellis, 29; Barrett v. Eogers, 7 Mass. 297; Md. Ins. 
 Co. V. Euden, 6 Cranch, 338. If the carrier does not know the ownership of the 
 property and the consignment is unqualified, he has the right to assume that the con- 
 signee is the owner. Scammon v. Wells, Fargo & Co., 84 Cal. 311 ; Benjamin v. Levi, 
 39 Minn. 11. 
 
 5 Bliven v. Hudson Eiver E. E., 36 >r. Y. 403; Jewett v Olsen, 18 Oregon, 419. 
 
 « Cook V. Holt, 48 N. Y. 275. 
 
 32 
 
498 Law of Bailments. 
 
 title. He is not at fault until he does some act making himself a party 
 tt) a litigation of the title ; ^ and he cannot refuse, on a reasonable de- 
 mand, to surrender the goods to the true owner, without assuming the 
 burden of defending the title.^ 
 
 VII. Deliveet by the Caekiee. 
 
 § 61.^. The carrier's contract is not fulfilled until he delivers the 
 goods, or discharges himself, or is discharged from his liability by some 
 equivalent act. He engages to carry and deliver t!;" '^o'lds safely; his 
 iindertaking to transport the goods necessarily includes the duty of 
 ("^.elivering them in safety.' 
 
 ".'^lie manner of the delivery is regulated by many circumstances : by 
 tlie mode of the conveyance ; by the nature of the goods ; by the custnm 
 or course of business ; and by the contract. 
 
 § 616. When goods are carried over connecting lines, under a through 
 contract made with the carriers first receiving them, the contract covers 
 the duty of making a safe delivery at the j)lace of destination ; — a duty 
 to be discharged in the same manner and subject to the same rules as 
 where he delivers goods to a consignee at the end of his own line.* 
 
 When the delivery is to be made by one of several connectmg lines 
 engaged in the transportation of through freight, the carrier company 
 bringing the goods to their place of destination is bound to deliver 
 them. The ol)ligation of the company is the same as if the first carrier 
 had not contracted for the conveyance and delivery of the goods at the 
 place of destination. The carrier may be charged on the ground of his 
 or its common law liability.^ Under the English rule, there is an im- 
 plied agreement by a railway company, receiving goods addressed to a 
 
 1 Dudley V. Hawley, 40 Barb. .398. The bailee may ask for time to investigate the 
 title; McEntee v. X. J. Steamboat Co., 45 X. Y. 34, :n. 
 
 2 Rogers v. Weir, 34 N. T. 463 ; Chaunce v. Syanton, 7 Maun & Gr. 903. A mere 
 stakeholder may file a bill of interpleader. Shaw v. Coster, 8 Paige, Ch. 339. Equitable 
 relief may be had, based on new facts. X. T. & H. E. Co. v. Haws, 56 X. T. 175; 3 
 Daly, 373. 
 
 3 Scheu V. Benedict, 110 N. T. 510, 513; De Mott v. Laraway, 14 Wend. 225; Miller 
 V. Steam Xav. Co., 10 X. T. 431; Gibson v. Culver, 17 Wend. 305; Faulkner v. Hart, 
 82 N. Y. 413; Sherman v. Hudson River R. R. Co., 64 X. Y. 254; Bank of Oswego v. 
 Doyle, 91 N. Y. 32, 38; Zlnn v. New Jersey Steamboat Co., 49 N. Y. 442, 445. 
 
 * Cutts V. Brainerd, 42 Vt. 560; Hill Manuf. Co. v. Boston, etc., E. R. Co., 104 Mass. 
 122; Toledo, P. & W. E. E. Co. v. Merriman, 52 111. 123; Lamb v. Camden & Amboy 
 E. R. & Tr. Co., 46 N". Y. 271; Burnell v. N. Y. Central E. E. Co., 45 N. Y. 184; 
 ante, § 5S3. 
 
 5 Ante, §§ 577, 583; Burtis v. Buffalo, etc., E. E. Co., 24 N. Y. 269; Noyes v. r.uf- 
 land ct- B. E. E. Co., 27 Tt. 110; Buffett v. Troy & Boston E. R. Co., 40 X. Y. 1G8; 
 Hill Manuf. Co. v. Boston, etc., R. R. Co., 104 Mass. 122. 
 
Common Careieks. 499 
 
 particular place, to be reached by a connecting road, to carry and deliver 
 at that place. The contract is entire, and the first is the contracting 
 carrier, the only party liable for a failure to deliver the goods.^ The 
 rule appears to be followed in Illinois ; ^ it is not generally followed in 
 this country. 
 
 § 617. The contract prescribes the carrier's duty in making a deliv- 
 ery, where he receives and engages to carry goods over his line and then 
 forward them by another carrier : he remains liable until he delivers 
 them to the next carrier, as specified in the contract.^ 
 
 The rule is the same where a carrier receives goods or parcels ad- 
 dressed to a point on a connecting line beyond its terminus ; on arriv- 
 ing at the terminus, the goods must be safely delivered to the next 
 carrier, pursuant to the shipper's mstructions.* The first carrier is 
 liable for the goods until he delivers them into the custody of the 
 second, and where the goods are to pass over several successive lines, 
 the second carrier is liable for them until he delivers them to the 
 third, and third until he delivers them to the fourth, and so onward 
 until the goods reach the place of destination. It is the duty of each 
 carrier forming the line to transfer the goods to the next; and he 
 remains liable for them as a carrier until he does so.^ 
 
 1 Mytton T. Midland E. Co., 4 Hurl. & Norman, 610; Coxon v. Great Western E. 
 Co., 5 H. & iS^. 274; Bristol & Exeter Eailway v. Collins, 7 House of L. Cases, 194. 
 
 2 111. Central E. E. Co. v. Frankenberger, 54 111. 88; Anchor Line v. Hater, 68 111. 
 369; 24 111. 3-32. See also Angle v. Mississippi E. E. Co., 9 Iowa, 487. 
 
 3 Eeed v. U. S. Ex. Co., 48 IST. T. 462; Amer. Ex. Co. v. Second National Bank, 69 
 Penn. St. 394; Schneider v. Evans, 25 Wis. 241; Conkey v. Milwaukee & St. Paul E. 
 Co., 31 Wis. 619; Cin., Ham. & Dayton, & D. & Mich. E. E. Co. v. Pontius, 19 Ohio 
 St. 221; ante, § 582; Hinckley v. N. T. C. & H. E., 56 N. T. 429; Jennings v. Grand 
 Trunk Ry. Co., 127 N. T. 438; Eawson v. Holland, 59 N. T. 611. 
 
 * Eoot v. Great Western E. Co., 45 N. T. 524; ^tna Ins. Co. v. Wheeler, 49 N. Y, 
 616; Mills v. Mich. Central E. E. Co., 45 N. Y. 622; Johnson v. N. Y. Central E. E. 
 Co., 36 N. Y. 610; Hinckley v. N. T. Cent. & H. E. E. E. Co., 56 N. Y. 429. 
 
 ^ This rule is held with great strictness; in Miller v. Steam Nav. Co., 10 N. Y. 431, 
 where the goods were burned as they were transferred from a barge to a floating plat- 
 form from which the next carrier was to take them; and in Gould v. Chapin, 20 N. Y. 
 259, where the goods were burned under like circumstances, and the second carrier 
 had delayed unreasonably to receive them; and in Mills v. Michigan Central E. E. 
 Co., 45 N. Y. 622, where the goods were tendered to the succeeding carrier and burned 
 before they were delivered; and in Hooper v. Chicago & N. E. Co., 27 Wis. 81; and 
 in Conkey v. Milwaukee & St. P. E. Co., 31 Wis. 619, where the goods were destroyed 
 under like circumstances. Gass & North v. N. Y., Prov. &B. E. Co., 99 Mass. 220; 
 ante, § 582. 
 
 If the contract of the carrier is to deliver the goods at a point beyond the terminus 
 of his line, he is responsible for the consequences of any default or want of reasonable 
 diligence in that respect on any part of the route unless relieved by some limitation of 
 
500 Law of Bailments. 
 
 Agreements to forward the goods in a particular way or by a specified 
 line, whether made in express terms or implied from the marks or 
 address upon the goods themselves, are to he fulfilled with all fidelity ; 
 the carrier must not depart from them. It is his duty, and it is his 
 right, to deliver and forward the goods according to the contract.^ 
 
 § 618. A carrier by coach is bound to deliver to the consignee at his 
 residence or place of business ; jn-ima facie he is bound to deliver the 
 goods to the consignee personally.^ The rule had its origin in the early 
 custom of carriers by land, and it is still enforced, on grounds of pub- 
 lic convenience.'' It applies with special propriety to express carriers, 
 established for the purpose of extending to the public the advantages 
 of a prompt conveyance and personal delivery.^ It requires an actual 
 delivery of parcels according to their address, unless the duty is quali- 
 fied by the contract, or by the consignee's consent.^ A parcel addressed 
 to the cashier of a bank may in his absence be delivered to a receiving 
 teller standing behind the counter : being by its address legally deliv- 
 erable to the bank, it is properly delivered to an assistant acting for 
 the bank m business hours." 
 
 A carrier is not obliged to deliver a package of money or specie 
 addressed to a bank, within bankuig hours, unless there is a special 
 contract to that effect or an established usage of business requiring it ; 
 and he is bound to tender a delivery of the package, at a reasonable 
 time, and in a reasonable manner, having regard to the safety of the 
 package and the convenience of both parties.' 
 
 The liability of an express carrier does not terminate on the arrival 
 of a package at the place of destination, until he has used all reasonable 
 
 liability in the contract of affreightment. Jennings v. Grand Trunk Ey. Co., 127 
 N. T. 438; Falvey v. Georgia R. R. Co., 76 Ga. 597. 
 
 1 Babcock v. Lake Shore * M. H. R. Co., 49 N". T. 491; Yan Santvoord t. St. John, 
 6 Hill, 157; Simkins v. X. & X. L. St. Co., 11 Cush. 102; White v. Ashton, 51 N. T. 
 280; Hinckley V. X. Y. Central & H. River R. Co., 50 N. Y. 429; all rail, Bostwick 
 V. Baltimore & Ohio E. E. Co., 45 N". Y. 712; United States Ex. Co. v. Haines, 67 
 111. 137. 
 
 2 Gibson v. Culver, 17 Wen 1. 305, citing Golden v. Manning, 3 Wils. 425, 433; Owen, 
 57; Storr v. Crowley, 1 McClcl. tt Young, 129, 138; Richmond v. Union Steamboat 
 Co., 87 ]>T. Y. 240, 244. 
 
 " Great Western E. v. Crouch, 3 H. & N. 183; 2 Kent's Com. 604. 
 
 4 Witbeck V. Holland, 45 X. Y. i:!. 
 
 5 Haslam v. Adams Ex. Co., Bosw. 235; Sweet v. Barney, 24 Barb. 5.33; S. C. 23 
 N. Y. 335; Am. U. Ex. Co. v. Eobmson, 72 Penn. St. 274; Finn v. West. E. E., 102 
 Mass. 283; Adams Ex. Co. v. Stettaners, 61 111. 184. 
 
 6 Hotchkiss V. Artisans' Bank, 42 Barb. 517; S. C. 2 Keyes, 564. 
 
 ' Merwin v. Butler, 17 Conn. 138 ; Young v. Smith, 3 Dana, 91 ; Marshall v. Amer- 
 ican Ex. Co., 7 Wis. 1. 
 
Common Carriers. 501 
 
 ■diligence to find the consignee and deliver the package to him. Hav- 
 ing fulfilled his contract, his liability diminishes to that of a bailee for 
 hire ; ^ and he will afterwards hold the package subject to the owner's 
 order, subject to the order of the consignee where the shipper retains 
 no interest in it ; ^ and subject to the order of the consignor where he 
 retains the title or right to control the disposition of the property.* 
 
 § 619. A transaction requiring the concurrence of two parties in a 
 matter of business, such as a delivery of goods by a carrier to a con- 
 signee, naturally takes its form with due consideration for the con- 
 venience of both parties. A mode of action is gradually adopted, as 
 suggested and qualified by experience, with a view to promote the con- 
 venience and safety of the business ; by degrees this mode of action 
 settles into a general custom, and becoming well known, all parties 
 make their contracts with reference to it. This appears to be the 
 genesis of the rules of law prescribing the carrier's duty in delivering 
 goods.* 
 
 Carriers by water, in the absence of any special custom, deliver on 
 the wharf, at a suitable time, and on a reasonable notice to the con- 
 signee.* The delivery must be made in a reasonable manner, so that 
 the consignee may receive the goods ; and if for any reason the con- 
 signee does not receive them, it is the carrier's duty to protect them 
 from loss or injury ; the law does not permit him to leave them ne- 
 glected on the wharf." He must deliver them to the consignee, or place 
 them within his legal custody ; and he does this where the consignee, 
 being present, accepts the consignment or evinces a readiness to receive 
 the goods, and the same are landed on the wharf so as to give the con- 
 
 1 Wltbeck V. Holland, 45 N. T. 13; Adams Ex. Co. v. Darnell, 31 Ind. 20. 
 
 2 Thompson v. Fargo, 58 Barb. 575; 44 How. Pr.; and S. C. 49 N. T. 188; and 63 
 If. T. 479. 
 
 ' Lewis V. Galena, etc., E. E. Co. 40 111. 281; Hamilton v. Nickerson, 11 Allen, 308; 
 8 Exch. 341. 
 
 4 Golden v. Manning, 2 W. Bl. 916; 3 Wils, 429; Stoer v. Crowley, McClelland 
 & T. 129; Ostrander v. Brown, 15 Jolin. E. 39; Packard v. Getman, 6 Cowen, 
 757. 
 
 6 Price V. Powell, 3 N". T. 322; Fisk v. Newton, 1 Denio, 45; 17 Wend. 305; 
 McAndrew v. Whitlock, 52 IST. T. 40; Zinn v. N. J. Steamboat Co., 49 N. T. 442; 
 EicbmondY. Union Steamboat Co., 87 K. T. 240, 245; Tarbell v. Eoyal Exchange 
 Shipping Co., 110 N". Y. 170. 
 
 6 Eedmond v. Liverpool, N. T. & Phila. S. Co., 46 N". T. 578; Eichardson v. God- 
 dard, 23 How. TJ. S. Eep. 28; Gatliff v. Bourne, 4 Bing. N. C. 314; 3 M. & G. 643; 11 
 Clark & Fin. 45; "Withers v. N. J. Steamboat Co., 48 Barb. 445; Herman v. Good- 
 rich, 21 "Wis. 356; Tarbell v. Koyal Exchange Shipping Co., 110 X. T. 170; Scheu v. 
 Benedict, 116 K. T. 510. 
 
502 Law op Bailments. 
 
 signee a reasonable time and opportunity to take charge of and re- 
 move them.^ 
 
 § 620. The carrier's duty to call upon the consignee, or notify him of 
 his readiness to deliver the goods, may be qualified by circumstances, 
 by the course of business between the parties, or by contract. The car- 
 rier is not required to do impossible things ; and so he need not give 
 the usual notice, where on due inquiry he cannot find the consignee or 
 his place of business ; ^ he may store the goods or retain them as a 
 warehouseman. The carrier is not bound to depart from the estab- 
 lished course of business ; and so where a steamboat regularly carries ' 
 and delivers goods on its wharf, from which the consignee habitually 
 takes them without notice, the delivery is sufficient to relieve the car- 
 rier of his extraordinary liability, after the lapse of a reasonable time 
 to remove the goods. The course of business enters into the contract ; " 
 and so does the usage or custom of the port where the delivery is to 
 be made, unless the contract provides for a different mode of delivery.* 
 A general usage or custom regulating the mode of delivery 2^rima 
 facie binds the parties ; it is not necessary to show, in order to bind a 
 party, that he was conversant with the custom ; ^ still the carrier must 
 prove the existence of a local usage relied upon by him, as dispensing 
 with the usual notice to the consignee, where the goods are landed on 
 the wharf." 
 
 § G21. It is the privilege of a carrier by water to deliver goods on 
 the wharf at his usual place of discharge ; his implied contract is to 
 carry from port to port, and he is not obliged to bring his vessel to a 
 
 1 Goodwin v. Baltimore & Oliio E. R. Co., 50 N. T. 154; Sclioles v. Ackerland, 15 
 111. 474; per Grovek, J., in "Witbecls; v. Holland, 45 N. T. 13, 17. 
 
 2 Pelton V. Rensselaer & S. R. E. Co., 54 N. Y. 214; Northrop v. Syracuse & B. X. 
 T. R. R. Co., 2 Trans. App. 18.3; Herman v. Goodrich, 21 Wis. 356. 
 
 8 Ely V. New Haven S. Co., 53 Barb. 207 ; Farmers', etc., Bank v. Champlain Trans. 
 Co., 23 Tt. 186; Richardson v. Rich. 104 Mass. 156; The J. Russell Manuf. Co. v. X. 
 H. Steamboat Co., 50 N. T. 121; S. C. 52 N. T. 657; ante, § 525. See Richmond v. 
 Union Steamboat Co., 87 N. T. 240, and cases cited. 
 
 4 Atlantic Nav. Co. v. Johnson, 4 Robt. 474, 498; Gleadell v. Thompson, 56 N. Y. 
 194; Henshaw v. Rowland, 54 N. T. 242; Richmond v. Union Steamboat Co., ST 
 N. T. 240. 
 
 5 Gibson v. Culver, 17 Wend. ,305; Van Santvoord v. St. John, 6 Hill, 157; Turner 
 V. Huff, 46 Ark. 222; Farmers' & M. Bank v. Champlain Transp. Co., 16 Vt. 52. As 
 to the general effect of a custom, see Walls v. Bailey, 49 N. Y. 464. 
 
 " Rowland v. Miln, 2 Hilton, 150. Where delivery to the consignee is stipulated in 
 the bill of lading, to justify a substituted delivery the carrier must show that such 
 delivery is in accordance with the usage and custom of the port of delivery. Rich- 
 mond V. Union Steamboat Co., 87 N. Y. 240. For some purposes a tender of delivery 
 has the same i effect as an actual delivery. Clendaniel v. Tuckerman, 17 Barb. 184. 
 
Common Cabeiees. 503 
 
 wharf nearest or most convenient ta the consignee.^ His actual con- 
 tract may, and often does, control the time and mode of the delivery, 
 while it apportions the expense and risk attendant upon the landing 
 of the goods.^ 
 
 § 622. The consignee's liability for demurrage is based upon his 
 duty to receive the goods brought to him by the carrier within a rea- 
 sonable time ; and the rules rendering him thus liable under the con- 
 tract or under the custom of the port .may be received as fixing what 
 the law regards as a reasonable time for the landing and delivery of 
 goods.^ These rules may also be considered as bearing upon the car- 
 rier's duty where the consignee unreasonably delays to accept and 
 receive the goods. As the delay does not leave him without a legal 
 remedy and redress for the injury he sustains, the law does not justify 
 him in landing goods on a holiday, or perishable goods iu bad weather;^ 
 and it does not discharge him from the duty of taking reasonable 
 care of ordinary goods after he has landed them, on a wharf chosen 
 by himself, at a reasonable time and- on due notice. The consignee's 
 failure to appear does not justify him in leaving the goods unpro- 
 tected; and it does not relieve him of the duty to deliver or store 
 the goods.* The rule is different where the consignee appears and 
 pays the freight, showing his readiness to receive the goods ; or where 
 he selects the wharf and commences to receive the goods. Here it is 
 the duty of the consignee to protect the goods against damages from 
 the weather ; and the delivery is complete as soon as the consignee 
 has had a reasonable time to remove them.' 
 
 An unreasonable delay by the consignee to receive the goods, after 
 notice of their arrival, relieves the carrier of his common law liability 
 
 1 Western Transp. Co. v. Hawley, 1 Daly, 327 ; Chickering v. Fowler, 4 Pick, 371 ; 
 Ostrauder v. Brown, 15 John. 39; GatlifE v. Bourne, 4 Bing. N. C. 314; Cope v. 
 CordOYa, 1 Eawle, 203. See Eiclimond v. Union Steamship Co., 87 iST. Y. 240, 245. 
 
 2 Gleadell v. Thompson, 56 N. Y. 194. See "Western Transp. Co. v. Hoyt, 69 N. 
 T. 230. Where the contract calls for delivery at the warehouse of the consignee, 
 delivery must be made there whether the carriage is by land or water, by rail or barge. 
 N. Y. C. & H. E. E. E. Co. v. Standard Oil Co., 87 I^. Y. 486. 
 
 8 Ante, §§ 592, 593. 
 
 ■• McAndrew v. Whitlock, 2 Sweeny, 623; S. C. 52 K.Y. 40. See Eussel Manuf. Co. 
 V. New Haven Steamboat Co., 50 N. Y. 121, where the goods were landed on the 
 fourth of July, and it was not the consignee's custom to receive goods on that day. 
 
 SEedmond v. Liverpool, N. Y. & Phila. S. Co., 46 N. Y. 578; Collins v. Burns, 
 63 N. Y. 1; 7Blatchf. 186; Guillaume v. General Transp. Co., 100 N. Y. 491, 500; 
 Tarbell v. Eoyal Exchange Shipping Co., 110 N. Y. 170; Scheu v. Benedict, 116 K. Y. 
 510. 
 
 « Goodwin v. Baltimore & Ohio E. E. Co., 50 N. Y. 154; 50 N. Y. 121: Eichardson 
 V. Godtlard, 23 How. XT. S, 28. 
 
504 Law of Bailments. 
 
 and brings him under the usual obhgation of a bailee for hire. The 
 consignee cannot arbitrarily prolong the time during which the carrier 
 shall remain liable as an insurer ; ^ and it appears that an agreement by 
 the carrier to retain the goods on board for some days for the accom- 
 modation of the consignee, after tendering a delivery, does not prolong 
 his responsibility as a carrier.^ 
 
 § 623. The carrier's duty to notify the consignee of the arrival of the 
 goods is enforced in many forms. If the consignee be absent or un- 
 known, it is the carrier's duty to use proper and reasonable diligence 
 to find him ; and if by the exercise of such diligence the consignee can- 
 not be found, the carrier discharges his duty as such by storing the 
 goods in a proper manner. A reasonable and diligent effort to find 
 the consignee is a condition precedent to the carrier's right to store 
 the goods ; and the carrier's failure in this duty will render him liable 
 for the damages resulting from his neglect, by depreciation in value, 
 or otherwise.^ Having fulfilled his duty, the carrier may deposit the 
 goods in a warehouse subject to his lien for freight;* or he may thus 
 deposit them, receiving his freight from the warehouseman, and 
 free himself from all further interest in or duty in respect to the 
 goods. ■• 
 
 What is the duty of the carrier when the consignee refuses to accept 
 the goods ? It can hardly be claimed that he comes under any differ- 
 ent or greater obligation than that which the law imposes upon him 
 where he fails, after using due diligence, to find the consignee. A re- 
 turn of the goods is not required. There is no ground on which to 
 infer a request by the consignor to bring back the goods, since in many 
 cases the return freight would be utterly lost ; the goods being as a 
 rule of greater value at the place of destination than at the point of 
 departure." 
 
 1 Clendaniel v. Tuckerman, 17 Barb. 184; Hedges v. Hudson River E. Co., 49 K T. 
 223; Tarbell v. Royal Exchange Shipping Co., 110 N. T. 17(J, 180. 
 
 - Hathorn v. Ely, 28 IST. Y. 78; Banli of Oswego v. Doyle, 91 N. Y. 32. In sucli 
 case the vessel becomes a warehouse. Id. See Nat. Steamship Line v. Smart, 107 
 Pa. St. 492. 
 
 s Zinn V. New Jersey Steamboat Co., 49 N. Y. 442; 4.5 N. Y. 13; Sherman v. Hud- 
 son River R. Co., 64 N. Y. 254; Mors-le-Blanch v. Wilson, .5 English (Moak), 286; 
 Bank of Oswego v. Doyle, 91 N. Y. 32; Scheu v. Benedict, 116 N. Y. .510; Tarbell v. 
 Royal Exchange Shipping Co., 110 N. Y. 170. 
 
 * Western Transp. Co. v. Barber, 56 N. Y. 544. 
 
 5 Hamilton v. Nickerson, 11 Allen (Mass.), 308; Fish v. Newton, 1 Denio, 45. 
 
 ^ Mors-le-Blanch v. Wilson, 5 English (Moak), 286, involving a cargo of coal carried, 
 from the Thames to Buenos Ayres ; Steamboat Keystone v. Moies, 28 Mo. 24?,; 
 1 Denio, 45. Wlien the person named in the bill of lading as the one to whom delivery- 
 is to be made refuses to receive the goods, the only duty attaching to the ship is to 
 
Common Careiees. 505 
 
 Where goods are sent by a carrier to be delivered to the consignee, 
 the purchaser, on his paying the price of them, the carrier discharges 
 his duty by tendering a delivery of the goods on tlie terms of the con- 
 tract ; and where the consignee promises from time to time to take and 
 pay for the goods, the carrier's omission to notify tlie consignor of the 
 delay is not an act of negligence. And he is not liable for the goods 
 as a carrier after tendering a delivery of them for cash.* 
 
 § 624. Ships and vessels transport goods from port to port, having 
 no facilities for transferring the goods from the landing place to the 
 consignee's warehouse or place of business. Kailroads transact the 
 carrying business under a similar limitation. They can only receive 
 and deliver goods at fixed stations or depots, at the terminus, or along 
 the line of the track. They provide no facilities for removing the goods 
 from the station or depot : the law does not require it of them, and it 
 is no part of their business to do so. 
 
 Under a statute of this State regulating the business of railroad cor- 
 porations, it is required that every such corporation shall start and run 
 their cars for the transportation of passengers and property, at regular 
 times to be fixed by public notice ; and shall furnish sufficient accom- 
 modation for the transportation of all such passengers and property, 
 as shaU within a reasonable time previous thereto be offered for trans- 
 portation at the place of starting and at the junctions of other rail- 
 roads, and at usual stopping places established for receiving and dis- 
 charging way passengers and freight ; and shall both transport and 
 discharge such passengers and property at, from and to such places, on 
 the due payment of the freight or fare legally authorized therefor.^ 
 
 The statute makes railroad corporations common carriers of prop- 
 erty,' with such variations as the nature of the business requires. It 
 imposes upon them the same general duties as the common law pre- 
 scribes to the common carrier.* 
 
 § 625. Where there is no custom to the contrary, carriers by water 
 must give notice of the arrival of goods, and of their readiness to de- 
 hver. By analogy, railway carriers should notify the consignee of the 
 arrival of goods, and give him a reasonable opportunity to remove 
 them, before they place the goods in store and assume the character of 
 
 keep the goods for the owner. Wilson v. Eoyal Exchange Shipping Co., 24 Fed. Eep. 
 815. 
 
 1 Weed V. Barney, 45 N. T. 344; Grossman v. Fargo, 6 Hun, 310; Lyons v. Hill, 
 46 ]Sr. H. 49. 
 
 2 Laws of 1890, Chap. 565, § 34, as amended by Laws of 1892, Chap. 676. 
 « Laws of 1890, Chap. 565, § 48, as amended by Laws of 1892, Chap. 676. 
 * Wibert V. New York & Erie E. Co., 12 N. Y. 245. 
 
50G Law of Bailments. 
 
 warehousemen. 1 It is clear that a railway carrier remains liable as 
 such, until the consignee has had a reasonable time to remove the 
 goods ; as where they arrive so late in the afternoon that the consignee 
 has no opportunity to remove them before the close of business hours 
 for the day, and they are burned up during the night.^ The custom of 
 railroads m this State is to give the consignee notice that the goods are 
 ready for delivery ; and the law requires them to give the notice ; it 
 treats them like ordinary carriers, who are not bound to carry the 
 goods to the consignee's place of business." 
 
 In some of our States a railroad carrier is not required to give the 
 consignee notice of the arrival of goods. The decisions to that effect 
 Ijroceed upon two grounds : lirst, that the contract of the railroad does 
 not in terms bind the company to give tliu notice ; and second, that it is 
 the duty of the consignee to anticipate the arrival and call for the 
 L;ijods ; that being advised of the shipment, as he is hi the usual course 
 of business, he can compute or reckon the time of the arrival with 
 reasonable certainty.* His contract is the same as that of a carrier by 
 water ; and the time of the arrival by water can be ascertained before- 
 hand with nearly the same certainty as the arrival of freight by a rail- 
 road. As a matter of principle, it is therefore difficult to point out 
 any true ground of discrimination between carriers by rail and carriers 
 by water. 
 
 § 626. It is conceded that a railroad carrier must give notice of the 
 
 1 Schroeder v. Hudson Kiver R. Co., 5 Duer, 5.5, 62; Clark v. Masters, 1 Bosw. 
 177, 183; Rome Railway v. Sullivan, 14 Geo. R. 277; Michigan Central v. Ward, 
 2 Mich. 538; Browning v. Long Island E. Co., 2 Daly, 117; Hedges v. Hudson River 
 R. Co., 6 Robt. 119; S. C. 49 JST. T. 223; Fenner v. Buffalo & State Line R. Co., 44 
 >f. Y. 505; Sherman v. Hudson River E. Co., 64 N. T. 254; McKinney v. Jewett, 24 
 Hun, 19; Faulkner v. Hart, 82 N. T. 413. 
 
 2 Moses V. Boston & Maine R. Co., 32 N. H. 523; Wood v. Crocker, 18 Wis. .345. 
 .S(!e Francis v. Dubuque tt Sioux City R. E. Co., 25 Iowa, 60, excusing the railw.ir 
 carrier under like circumstances; and 1 Gray (Mass.), 263. See McKinney v. Jewett, 
 24 Hun, 19; Faulkner v. Hart, 82 N. T. 413. 
 
 3 Crawford v. Clark, 15 III. 501; Gaff v. Bloomer, 9 Penn. St. 114; 64 X. Y. 2.")4; 
 40 K. T. 223, and cases above cited. 
 
 ■• Thomas v. Boston & Prov. R. Co., 10 Mete. R. 472 ; Norway Plains Co. v. Boston 
 & Maine R., 1 Gray (Mass.), 263; Farmers' & M. Bank v. Champlaiu Transp. Co., 23 
 yt. 211; Bansemer v. Toledo &, Wabash R. Co., 25 Ind. 435; Francis v. Dubuque & 
 Sioux City R. R. Co., 25 Iowa, 60; Jackson v. Sacramimto Valley E. Co., 23 Gala. 
 268; Morris & Essex R. Co. v. Ayres, 29 N. J. Law E. 393; Skenk v. Phila. Steam P. 
 Co., 60 Penn. St. 109; Moses v. Boston & Maine E. Co., 32 N. H. 523; Illinois E. Co. 
 V. Friend, 04 111. 303; Illinois Central R. Co. v. Cobb, 64 111. 128; Anchor Liner. 
 Knowles, 66 HI. 150; Rothschilds v. Mich. C. R. Co., 09 111. 164, 630; Rice v. Hart, 
 lis Mass. 201; Stowe v. N. T., Boston & P. R., 113 Mass. 521. 
 
Common Cakeieks. 507 
 
 arrival of goods, where it is the custom to do so.* On the same-ground, 
 of a well-known custom, the giving of a notice may be excused; the 
 delivery being generally regulated by the custom or course of business.^ 
 A road having many way stations to which it carries goods, addressed 
 to parties doing business some little distance therefrom, does not find 
 it convenient to send a messenger with notice to the consignee when- 
 ever a package is received. The road cannot afford the expense of the 
 extra service requu'ed, and the neighborhood cannot well, get along 
 without using the railroad and receiving its freight from the station. 
 The situation and the business give rise to a custom, under which the 
 goods addressed to persons living near it are received at the station to 
 await the call of the consignee, without notice. The custom becoming 
 once established, contracts are made with reference to it, and the carrier 
 fulfills his duty by delivering the goods or package in the usual man- 
 ner ; or by receiving and placing the same in his warehouse to await 
 removal by the consignee. Under the custom the carrier becomes a 
 warehouseman, and liable only in that capacity after the lapse of a 
 reasonable time to remove the goods. The authorities in the different 
 States may be reconciled on this theory of custom, as modified by con- 
 tract and the varying circumstances attending the arrival and storage, 
 or delivery of goods.' 
 
 The principle is not new. Where a carrier has a warehouse at the 
 place of destination, in which, by a usage well known among his employ- 
 ers, or by a special agreement, he is accustomed to store the goods for the 
 accommodation and benefit of the owner until it is convenient for him 
 to come and take them away, the carrier is not answerable for them as a 
 carrier, after they are safely warehoused.* His duty having ended as a 
 carrier, his responsibility is changed, as we have seen, into that of a 
 warehouseman. If no act remains to be done by him in his character 
 as a carrier, his liability as such is at an end.^ And where he unites 
 the two characters of a warehouseman and carrier, and receives goods 
 for storage until an order of the owner is given to send them forward, 
 
 1 Chicago & N. E. Co. v. Sawyer, 69 111. 285; 18 American E. 613, relating to 
 bonded goods arriving in Chicago. 
 
 2 Hurd V. Hartford & N. T. S. Co., 40 Ct. 48; The J. Eussell Manuf. Co. v. N. H. 
 S. Co., 52 N. T. 657; 50 N. T. 121. 
 
 * Ante, § 625, and authorities there cited ; also, Tanner v. Oil Creek Eailway, 53 
 Penn. St. 411; Price v. Powell, 3 N. T. 323; New Albany & Salem E. Co. v. Camp- 
 bell, 12 Ind. 55; Barstow v. Murison, 14 La. Ann. 335; Gauch v. Storer, 14 La. Ann. 
 411, 417; in respect to baggage, under a promise to keep over night; Ouimit v. Hen- 
 shaw, 85 Vt. 605. 
 
 * Matter of Webb, 8 Taunt. E. 443. 
 
 « Hyde v. Trent & Mersey Nav. Co., 5 Term E. 389. 
 
508 Law of Bailments. 
 
 or where lie transports them to the end of the route, and there, by- 
 agreement or by a usage tantamount to a contract, places them in store 
 to await the call of the owner, he is responsible as a warehouseman 
 while discharging the duties incident to that species of bailment.' 
 
 § 627. The carrier is as much bound to deliver goods safely as he is 
 to carry them safely. He is liable for the goods, where he delivers 
 them to a wrong party, though the misdelivery be procured by fraud.^ 
 He is liable for the injury or loss of goods, caused by the breaking of the 
 tackle or machinery used by him in landing or delivering the goods ; ' 
 unless the consignee himself furnishes the machinery or assumes the 
 control and direction of the business ; * or unless the contract relieves 
 him from liability therefor.^ 
 
 The burden of proving a delivery, or equivalent facts, rests upon the 
 carrier. The law requires him either to deliver, or to excuse a non- 
 delivery of the goods. ^ 
 
 Where it appears to be the custom or course of business known to 
 the consignor, the carrier may discharge himself by showing, a delivery 
 of goods or packages to a wharfinger ; ' not so where the consignee calls 
 for the goods at the proper place and in the proper time.* Landing 
 goods on a wharf, the carrier must see that they are actually received 
 by the consignee or by some one authorized to act for him.^ 
 
 § 628. The carrier must deliver, or tender a delivery, within the usual 
 hours of business. If the goods arrive in the evening, too late for 
 delivery on the same day, the carrier's responsibility continues until 
 
 1 Piatt V. Hibbard, 7 Cowen, 497; 11 Adolpli. & Ellis, 43; O'Xiel v. N. T. C. & 
 Hudson Elver R. R. Co., 60 N. Y. 138; Rogers v. Wheeler, 52 N. Y. 202. 
 
 2 Wlnslow V. Vt. & Mass. R. Co., 42 Vt. 700; Claflin v. Boston, etc., E. E. Co., 7 
 Allen, 341; Powell v. Myers, 26 Wend. 591; Collins v. Burns, 4 J. & Sp. 518; 63 N. T. 
 1; Furman v. Union Pacific R. R. Co., 106 X. Y. .579; Wernwag v. Pliila., etc., E. R. 
 Co., 117 Pa. St. 46 ; Gulllaume v. General Transp. Co., 100 X. Y. 491; McCullochv. 
 McDonald, 91 Ind. 240. The carrier has his remedy against the person wrongfully 
 receiving the goods or against any other person to whom he may deliver them. Young 
 V. East Ala. Ey. Co., 80 Ala. 100. 
 
 ' De Mott V. Laraway, 14 Wend. 225. He must provide a safe place of delivery. 
 Sunderland v. Westcott, 2 Sweeny, 260. 
 * Louis V. Western Railroad Corporation, 11 Metcalf, 509. 
 
 5 Knowles & Randall v. Dabney, 105 Mass. 437. 
 
 6 Sheldon V. Robinson, 7 K. H. 157; Union Ex. Co. v. Graham, 26 Ohio St. 595; 
 TumbuU V. Citizens' Bank, 16 Fed. Rep. 145; United States v. Pacific Express Co., 
 15 Fed. Rep. 867. 
 
 ' Farmers & Mechanics' Bank v. Champlain Transp. Co., 23 "Vt. 185, 209; Noyesv. 
 Butland & B. Railway, 27 Vt. 110; Hurd v. Hartford & N. Y. S. Co., 40 Ct. 48. 
 
 8 Graves v. H. & N". Y. Steamboat Co., 38 Ct. 143. 
 
 9 Hemphill v. Chenie, 6 Watts & Serg. 62 ; Dean v. Vaccaro, 2 Head (Tenn.), 488. 
 
Common Caeeiees. 509- 
 
 the proper time arrives for making a delivery. The defendants, avIio 
 were common carriers, undertook to carry certain boxes of goods on 
 the railroad from Philadelphia to Columbia. The cars arrived at the 
 latter place about sundown on Saturday evening, and by direction 
 of the plaintiffs were placed on a siding. The plaintiffs declined 
 receiving the goods that evening on the ground that it was too late ; 
 whereupon the defendants' agent left the cars on the siding, taking 
 with him the keys with which the cars were locked, and promising to 
 return on Monday morning. The cars remained there till Monday 
 morning, when they were opened, and it was found that one of the 
 boxes had been rifled ; and it was adjudged that the defendants were 
 answerable for the goods lost.^ 
 
 § 629. The owner of the goods in the hands of the carrier has the 
 right to control the disposition of them.^ Prima facie the consignee 
 has the right to control the delivery ; " and yet the shipper may, as we 
 have seen, reserve to himself the jus disponendi, and by transferring 
 the bill of lading, convey the property to any other party ; and where 
 he does so, the party thus acquiring the indicia of title has the right to 
 demand and receive the goods. The rule has been recently applied to 
 the receipt given by a railway carrier ; the same being considered in 
 the nature of a bill of lading.* 
 
 The carrier is entitled to a reasonable time to ascertain the identity 
 
 1 Eagle T. White, 6 Whart. 50.5; Hill v. Humphreys, 5 "Watts & Serg. 123. 
 
 2 C. & P. R. E. Co. V. Sargent, 19 Ohio St. 438, holds that the party delivering and 
 paying freight on goods may resume control of them. 
 
 ^ Sweet V. Barney, 23 N. T. 335. When goods are delivered by a vendor to a carrier 
 to be conveyed to a certain place with the added words, "for Messrs. Stein & Co." — ■ 
 these persons thus appearing to be the consignees of the goods, may demand them of 
 the carr>r at another place, and the carrier will be justified in delivering them. Cork 
 Distilluries Co. v. Great Southern & Western R. Co. (Ireland), 7 L. R. H. L. Cas. 
 269; 8 Ir. R. C. L. 334. 
 
 * Ante, §§ 210-213; Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360; Mechanics 
 & Traders' Bank v. Farmers & Mechanics' l^ational Bank, 60 IST. T. 40; Bailey v. 
 Hudson Elver R. R. Co., 49JSr. T. 70; City Bank v. Rome, W. & O. E. E. Co., 44 
 N. Y. 136; 4N. T. 497; Rawls v. Deshler, 3 Keyes, 572; Dows v. Green, 24 N. Y. 
 638; Cayuga Co. Bank v. Daniels, 47 N. Y. 632; Marine Bank of Chicago v. Wright, 
 48 K. Y. 1; First Nat. Bank of Cincinnati v. Kelly, 57 N. Y. 34; Brown v. Combs, 
 63 H. Y. 599; Armour v. Michigan C. E. Co., 65 N". Y. 111. It is apparent from these 
 cases that the carrier is bound to deliver to the party having the title. The carrier's 
 receipt is in effect a bill of lading. National Bank of Green Bay v. Dearborn, 115 
 Mass. 219; Newcomb v. Boston & Lowell Railroad, 115 Mass. 230; Alderman v. 
 Eastern Railroad, 115 Mass. 233; Southern Ex. Co. v. Dixon, 15 Albany Law Journal 
 491; Furman v. Union Pacific R. R. Co., 106 N. Y. 579, 585; Howard v. Shepard, 
 C. B. 9 M. 6r. & Scott, 297; Tindall v. Taylor, 4 El. & Bl. 219; Pennsylvania R. R. 
 Co. V. Stem, 119 Pa. St. 24; Colgate v. Pennsylvania Co., 31 Hun, 297. 
 
510 Law of Bailments. 
 
 of the consignee, or party holding the title.^ Being responsible for any 
 mi stake, the law allows him to act with deliberation. 
 
 § 630. The carrier holds the goods subject to the vendor's right of 
 stoppage in transitu, where that right exists and is properly asserted. 
 The right to stop the goods in their transit is based on the vendor's 
 equitable demand for the purchase money. It is of equitable origin; 
 it does not proceed upon the theory of rescinding the contract, but 
 rather on the theory of repossessing and retaining the goods as a secu- 
 rity for the price.^ It is regarded as a power tacitly reserved out of 
 the former control which the consignor had over his property at the 
 time of delivering it to the carrier, and therefore paramount to 
 any agreement between the carrier and consignee, in respect of any 
 duty or right of lien which may arise upon those or other goods ; so 
 that if the consignor would exert this privilege, and reclaim the goods, 
 he is subject only to such lien or duty as may have arisen in considera- 
 tion ( if that particular bailment, for the labor and diligence bestowed 
 on the goods." 
 
 The right of stoppage ;'// transitu on a sale of goods on credit arises 
 where the vendee becomes insolvent after the sale and before the goods 
 have been actually delivered to him, or to his agent for him having 
 some authority in respect to the goods unconnected with their transit ; 
 as to keep or dispose of them. The basis of the right is, that the in- 
 solvency of the vendee was not contejnplated by the vendor in the 
 sale, and that it is plauily just that he should, on account of that un- 
 foreseen event, endangering the loss of the price to be paid, be permitted 
 to reclaim the goods and keep them as security for payment at any time 
 before a delivery terminating their transit. The right is limited to that 
 period, and ends with such a delivery." 
 
 1 McEntee v. New Jersey Steamboat Co., 45 N. T. 34. 
 
 2 Gibson v. Caruthers, 8 M. & W. 0:^7; Valpy v. Oakley, 16 Q. B. 941; 20 L. J. 
 Q. B. aSO; Griffiths v. Perry, E. & E. 680; 28 L. J. Q. B. 204; Wentworth v. Outh- 
 waite, 10 M. & W. 4:J(1; Martindale v. Smith, 1 Q. B. 3S9. There seems to be con- 
 siderable uncertainty in England as to this origin of the right, but in this country the 
 decisions preponderate in favor of the theory of a lien. See Eowley v. Bigelow, 12 
 Pick. 007; Stanton v. Eager, 16 Pick. 4G7-t7-J; Arnold v. Delano, 4 Cush. 33, 39; 
 Newhall v. Vargas, 13 Maine, 0:;; S. C. 15 id. 314; Piogers v. Thomas, 2:) Conn. 53; 
 Ellis V. James, 5 Ohio P,. R8-0S; Harris v. Pratt, 17 N. Y. 249, 203. The question 
 has never been definitely decided in this State. Babcock v. Bonnell, 80 N. T. -41, 
 251. See MuUer v. Pondlr, .55 N. Y. 325, .337. 
 
 2 Oppenheim v. Kussell, 3 Bos. & Pul. 49; Jeremy on Car. 108; Gossler v. Schepeler, 
 5 Daly, 470. 
 
 * Harris v. Pratt, 17 N. T. 249, 263; 5 Daly, 476. The right is not confined lo 
 goods or personal chattels or to a sale of goods on credit, and there is no distinc:io'.i 
 
Common Cabeiers. 511 
 
 § 631. The right to stop the goods exists only where they are sold on 
 a credit, and where it is necessary to secure the payment of the pur- 
 chase money ; e. g., it does not exist where the consignor owes the con- 
 signee a debt, equal in amount to the purchase price.^ 
 
 The right exists where the consignee is insolvent at the time of the 
 ■ purchase, or becomes so before the goods are delivered to him.'' The 
 right does not necessarily presuppose a fraud in the purchase ; and 
 while the right can hardly be asserted where the vendor knew of the 
 purchaser's insolvency at the time of the sale, it is clear that the con- 
 signor and seller may assert the right where, after the sale, he learns 
 the fact that such insolvencj existed at the time of the sale, viz., 
 general inability by the purchaser to pay his debts.* 
 
 The right remains so long as the goods are in the hands of the car- 
 rier or other persons concerned in transporting them to the place of 
 destination. It exists until the transit has ended ; until the goods come 
 into the actual or constructive possession of the vendee ; until they 
 come into the hands of some one receiving them as his agent, uncon- 
 nected with the business of forwarding them.^ The right exists as long 
 as the goods remain in the hands of the carrier or middleman ; it does 
 not cease on the carrier's storing the goods in his own warehouse, nor 
 until he actually delivers the goods.' Delivery to a warehouseman or 
 Yv .. .;flnger, who receives the goods at the place of destination in the 
 ordinary course of business as a middleman, is not a constructive deliv- 
 ery to the purchaser ; ° and the storing of the goods, at the place of des- 
 tination, in a warehouse which the consignee is accustomed to use as his 
 own, or placing them on a wharf from which the consignee is to take 
 them, is a delivery of the goods terminating the right to arrest them.' 
 
 so far as tlie exercise of the right is concerned between personal chattels or mer- 
 chandise in transitu and money or negotiable bills. Muller v. Pondir, 55 N. Y. 325. 
 
 i Clark V. Mauran, 3 Paige Ch. 373. 
 
 2 Loeb V. Peters, 63 Ala. 243; Schwabacher v. Kane, 13 Mo. App. 126. 
 
 s Parker v. Gossage, 2 C. M. & R. 617; Biddlecomev. Bend, 4 Ad. & E. 332; Buck- 
 ley V. Purniss, 15 Wend. 137; 17 Wend. 504; Hitchcock v. Covill, 20 Wend. 167; 
 Lacker v. Rhoades, 51 N. Y. 641. 
 
 * Mottram v. Heyer, 5 Denio, 629; Covill v. Hitchcock, 23 Wend. 611; Holbrook v. 
 Vose, 6 Bosw. 76. 
 
 6 Calahan v. Babcock, 21 Ohio St. 281; Powell v. McKechnie, 3 Dak. 319; Symms 
 V. Schotten, 35 Kansas, 310; Harding Paper Co. v. Allen, 65 Wis. 576. But see Hall 
 V. Dimond, 63 N. H. 565. 
 
 " Edwards v. Brewer, 3 Mees. & Wels. E. 375. 
 
 ■^ Rowe V. Pickford, 8 Taunt. 83; Sawyer v. Joslin, 18 Vt. 172. The right is lost 
 where the consignee intercepts the goods on the route, and takes them into his cus- 
 tody. Foster v. Frampton, 6 B. & C. 107. The delivery of goods to the vendee which 
 puts an end to the state of passage and to the right of stoppage in transitu, may be at 
 
512 Law op Bailments. 
 
 The right continues to exist until the buyer receives, or has trans- 
 ferred the property to a bomi fide purchaser for value, by a transfer, or by 
 a pledge of the bill of lading. But since a transfer of the bill to a pur- 
 chaser, or to a party honestly making advances iipon it, is valid, it neces- 
 sarily cuts oflf the right of stoppage in transitu} And the carrier must 
 respect the rights of the party thus acquiring the title to the prop- 
 erty.^ 
 
 § 032. The right of stoppage in transitu is exercised by giving to the 
 carri'jr or middleman notice not to deliver over the goods to the con- 
 signee, accompanied by a tender of the freight and legal charges. The 
 form of the demand is not important : it is the carrier's duty to obey 
 and act upon the notice ; but since he acts upon his own responsibility, 
 bis prudent course is to ask for a bond of indemnity, protecting him 
 against his possible liability to the consignee.' 
 
 The demand must be made of the proper party ; the notice must be 
 given to the carrier or middleman in whose custody the goods are at 
 the time, so as to prevent a delivery of them to the vendee.* In order 
 to make the notice effectual, it must be given either to the person who 
 has the immediate custody of the goods, or to the principal whose serv- 
 ant has such custody, at such time and under such circumstances that 
 he may with reasonable diligence prevent the delivery of the goods to 
 the purchaser or consignee.^ 
 
 Without going more fully into this subject, it is proper to observe 
 that the right to stop the goods at any time before they come into the 
 possession of the consignee, is favored, because founded in equity ; and 
 that it prevails over attachments and executions levied upon the prop- 
 erty on behalf of the creditors of the consignee at any time before the 
 same reaches him ; the vendor's right being considered the older and 
 preferable lien.^ 
 
 a place where the vendee means the goods to remain until a fresh destination is given 
 to them by orders from himself. Becker v. Hallgarten, 80 X. T. 167. 
 
 1 Dows V. Greene, 24 N. Y. 638; Gurney v. Behrend, .3 Ellis & Bl. 622; Lickbarrow 
 V. Mason, 1 Smith's L. Cases, 199, 6th ed. ; Becker v. Hallgarten, 86 X. T. 167; Loeb 
 V. Peters, 63 Ala. 243. As to effect of seller's suit and recovery against carrier, see 
 Rawls V. Deshler, 3 Keyes, .J72. 
 
 2 Bailey v. Hudson Kiver R. R. Co., 49 N. T. 70. 
 
 3 The Tigress, 32 L. J. Adm. 97. As to the form of the notice or demand required, 
 see Harris v. Pratt, 17 X. Y. 240, 2.j2. If the carrier disregards the shipper's order to 
 stop and return the goods, and delivers them to the consignee, he is liable for tbe 
 damages sustained by the slupper. Allen v. Maine Cent. R. R. Co., 79 Me. 327. 
 
 * Mottram v. Heyer, 5 Denio, 629. 
 5 Whitehead v. Anderson, 9 Mces. & Welsh. 518. 
 
 8 Smith V. Goss, 1 Campb. 2S2; l.'j Wend. 144, 145; Coates v. Eailten, 6 Barn. & 
 Cress. 422; 7 Term, 4.36; Dixon v. Baldwin, 5 East, 186; Rowe v. Pickford, 8 Taunt. 
 
Common Caeeeees. 513 
 
 § 633. The carrier is bound to deliver the goods on payment of the 
 freight ; tlie obligation to deliver and to pay being mutually dependent, 
 the one upon the other.^ The acts are simultaneous and concurrent ; 
 the carrier is not bound to deliver without payment, and the consignee 
 is only bound to pay the freight on a delivery of the goods ; that is, when 
 they are landed and ready to be placed in the custody of the consignee.^ 
 The active duty in making a delivery is with the carrier, and as a fact 
 asually precedes the payment of the freight ; but where the delivery is 
 procured by a false and fraudulent promise to pay the freight as soon 
 as the goods are received, the carrier may disaffirm the act and retake 
 or recover the goods in an action of replevin.^ 
 
 VIII. Caeeier's Hiee oe Rewaed. 
 
 § 634. One ground on which the carrier's responsibility arises is the 
 reward he receives for the carriage or transportation of property. Hence 
 where the value of the goods delivered to him is fraudulently concealed 
 or misrepresented, the carrier cannot be held liable on the contract for 
 the value of the goods.'' 
 
 The hire, price or reward for the carriage is of the essence of the 
 carrier's contract ; — he is not a common carrier unless he carries for 
 hire.* It is not however necessary that the hire should be agreed upon 
 at a fixed sum. His character is such that the law implies an under- 
 takiag or promise to pay him a reasonable reward for the carriage of 
 the goods delivered to him for that purpose.^ 
 
 The carrier's duty to receive and carry all goods tendered to him, of 
 the kind he usually carries, is qualified by his right to demand prepay- 
 ment of his hire or compensation.^ But if he omit to demand prepay- 
 ment, and refuse to receive the goods, a general tender of a reasonable 
 reward for the carriage will be sufficient to charge him in an action for 
 a refusal.' Having received the goods for carriage without a prepay- 
 ment of his hire or freight, the law gives him a right to demand liis 
 compensation on the delivery of the goods at the place of destination. 
 And to secure this right a lien is given to him on the property.^ 
 
 8.3; Mississippi Mills v. Union & Planters' Bank, 9 Lea (Tenn.), 314; Sherman v. 
 Ruyoe, 55 Wis. 346. 
 
 1 Clark v. Masters, 1 Bosw. 177; Langworthy v. Jf. Y. & Harlem E. Co., 2 E. D. 
 Smith, 195. 
 
 2 Bigelow V. Heaton, 6 Hill, 43; S. C. 4 Denio, 496. 
 
 3 Jeremy on Law of Car. 33; Magnin v. Dinsmore, 62 N. T. 35. 
 
 4Satterlee v. Groat, 1 Wend. 272; 3 Barb. 388; Dwight v. Brewster, 1 Pick. 50; 
 Shelden v. Eobinson, 7 N. H. 157; Blanchard v. Isaacs, 3 Barb. 388. 
 
 5 Allen V. Sewall, 2 Wend. 327; 6 Wend. 335; Merritt v. Earle, 29 N. T. 115. 
 
 6 Hollister v. Nowlen, 19 Wend. 234, 239; 2 Kent's Comm. 599. 
 
 ' 10 N. H. 481; 12 Mees. & Welsh. 766; 5 Bing. 217. » Jeremy on Car. 84. 
 
 38 
 
514 Law of Bailments. 
 
 § 635. The contract generally regulates the payment of freight, and 
 determines when it becomes due. Under an entire contract, freight 
 becomes due on a fulfillment of the agreement according to its terms.' 
 Where a vessel is chartered for a voyage out and home, for a specific 
 sum of money to be paid on her return, no freight is earned unless the 
 vessel completes the homeward voyage ; because by the agreement of 
 the parties the outward and homeward voyage are one, and the profit 
 depends on the entire performance.^ The contract is to be enforced, 
 according to its terms, so as to carry into effect the expressed intention 
 of the parties. 
 
 The contract being single and indivisible, as it generally is, freight 
 can only be recovered on a delivery of the goods.' Being drawn in such 
 terms that the freight is to be paid by weight, measure or package, the 
 contract is divisible, and freight may be collected on the goods delivered.* 
 
 § 6.36. The shipper or consignee, the party in interest, has a right to 
 stand upon the terms of the contract ; and a purchaser of the goods 
 while in transit, taking the bill of lading in good faith, and relying upon 
 it for the amounts and quality, is more favorably considered. He is 
 not bound to accept different articles or quantities, nor will his accept- 
 ance of a part of the articles, without knowledge of any deficiency, 
 preclude him from asserting his rights under the contract : ^ he is not ■ 
 bound to receive or pay freight on a different kind of goods from those 
 described in tlie bill of lading ; he has a right, iDurchasing or making 
 advances on the goods while in transit, to rely upon the s. i.L'inent of 
 fact contained in the bill.* The rule does not apply in favor of an 
 
 1 Barker v. Cheriot, 2 John. R. 352; Scott v. Libby, 2 Jolin. R. 336. 
 
 2 Penoyer V. Hallett, 1.5 John. R. ?>-]2; Lidilard v. Lopes, 10 East, 529; Lorillard v. 
 Palmer, 15 John. R. 14; S. C. 16 John. R. 318. The contract may be divisible. Bur- 
 rell V. Cleeman, 17 John. R. 72. If tlie contract so requires, the carrier must unload 
 his wares before he becomes entitled to freight. X. T. C. & H. R. R. R. Co. v. 
 Standard Oil Co., 20 Hun, 30; S. G. 87 N". T. 480; McOuUough v. Hellweg, 66 Me. 
 269. And if the carrier has contracted to transport goods and deliver them to the 
 consignee, a complete delivery must be made by him to entitle him to freight. Mere 
 safe carriage of the goods to the place of delivery is not sufficient. Western Transp. 
 Co. V. Hoyt, 00 N. T. 230. 
 
 ^ Sayward v. Stevens, 3 Gray, 07; The Nathaniel Hooper, 3 Sumner, 554; Tirrell v. 
 Gage, 4 Allen, 245; Sampago v. Salter, 1 Mason, 43; Case v. Baltimore Ins. Co., 
 7 C'ranch, 35S. 
 
 ^ Ritchie v. Atkinson, 10 East, 295; Christy v. Row, 1 Taunt. 300; Price v. Harts- 
 horn, 44 N. Y. 04; McGaw v. Ocean Ins. Co., 23 Pick. 405. 
 
 ^ Byrne v. Weeks, 7 Bosw. 372. 
 
 6 Dowes v. Perrin, 16 N. T. 325; Bates v. Todd, 1 M. &R. 106; Berkley v. Watkins, 
 7 Adol. & Ellis, 20. The master is estopped from denying that he had the goods. 
 Thompson v. Dening, 14 Meeson & W. 403. 
 
Common Carriers. 515 
 
 immediate party to the bill, so as to exclude proof of fraud or mis- 
 take in the amount or quality of the goods actiially shipped ; and henee 
 the carrier may recover freight, on delivering the goods received by 
 him.^ 
 
 § 637. The freight to be paid a ship carrier for transporting goods 
 includes a compensation for lading them ; ^ the vessel need not therefore 
 break ground or start on her voyage, to secure the benefit of the con- 
 tract. If the shipper demands a redelivery of the goods before the 
 ship sails, as he may do by the usage of trade, he must pay the stipu- 
 lated freight, besides indemnifying the master against liability on any 
 bill of lading given by him for the goods.' An attaching creditor seiz- 
 ing the goods is not allowed to withdraw them on any better terms.^ 
 The rule is the same where the owner shipping the goods demands and 
 receives them at some intermediate point, before reaching the place of 
 destination, without any waiver of his rights by the carrier.^ On the 
 same ground, where the shipper has the goods insured, and the insurer, 
 after a damage covered by the policy, intervenes and takes possession 
 of the goods as for a total loss under the terms of the policy, the carrier 
 being ready and able and willing to continue the transportation to the 
 place of delivery, is entitled to recover freight ; pro rata itineris where 
 he consents to surrender the goods. ^ The insurer acts under a right 
 derived from the owner and shipper ; and the latter has the right to 
 demand and receive the goods, on paying the stipulated freight. It 
 follows that an acceptance of the goods by the insurer is equivalent to 
 a receipt of them by the shipper ; and the acceptance being voluntary, 
 the carrier is entitled to pro rata freight.' 
 
 § 638. Freight is earned on the delivery of the cargo at the place of 
 destination ; and no freight is due on goods which perish by the perils 
 of the sea, during the course of the voyage.* But where a vessel is 
 
 1 Meyer v. Peck, 28 N. T. 590; 9 N. Y. 529. 
 
 2 Cutting V. Lyons, 1 Bos. & Pull. 364. 
 
 8 Tindall v. Taylor, 28 Eng. L. & Eq. 216; Bartlett v. Camley, 6 Duer, 194; Camp- 
 Ijell V. Conner, 70 K. T. 424. A shipper of goods on a railroad may resume control of 
 them in a reasonable manner; C. & P. E. E. Co. v. Sargent, 19 Ohio St. 438; the 
 shipper being the owner; Southern Ex. Co. v. Dixon, 15 Albany Law Journal, 491. 
 
 * Campbell v. Conner, TO N. T. 424. 
 
 5 Ellis V. Willard, 9 N. T. 529; case of the ship Hooper, 3 Sumner, 542. 
 
 8 McKibbin v. Peck, 39 N. T. 262; "Western Transp. Co. v. Hoyt, 69 ST. Y. 235. 
 
 ' Welsh v. Hicks, 6 Cowen, 504; Parsons v. Hardy, 14 Wend. 215; Smyth v. Wright, 
 15 Barb. 51, and cases there cited. The authority of these cases is not affected by 
 Atlantic M. Ins. Co. v. Bird, 2 Bosw. 195. 
 
 * Frith V. Barber, 2 John. K. 327; Bartlett v. Camley, 6 Duer, 194; Gibson v. 
 Brown, 44 Fed. Eep. 98. 
 
516 Law of Bailments. 
 
 driven by the j)erils of the sea into an intermediate port, and is unable 
 to proceed to the port of destination, and the owner elects to receive 
 the goods at the intermediate port, freight pro rata itineris may be 
 justly claimed on the goods so received.^ If the carrier offer to hire 
 another vessel on which to forward the cargo, or is able within a rea- 
 sonable time to repair his own vessel so as to proceed on the voyage, 
 he is entitled to demand his full freight.^ But if the master, without 
 sufBcient cause, refuses to repair his ship or to send on the good-s by 
 another vessel, the owner may demand the goods, and is discharged 
 from freight, both full and pro rata? To entitle the carrier to j>ro rata, 
 freight, there must be a voluntary acceptance of the goods by the 
 owner ; for if he be forced or constrained to receive them at the inter- 
 mediate port, or lying derelict on the shore, this is not such an accept- 
 ance of them as will raise an implied promise to pay the freight to that 
 place.'' 
 
 The event on which ^?ro r«^i' freight is claimed is not provided for 
 in the contract between the jparties. There is not therefore any legal 
 claim to it, on an abandonment of the voyage at an intermediate port, 
 founded on the original contract. The action must be based upon a 
 new or implied contract, arising out of the situation and the acts of the 
 parties. The owner of the goods, having the advantage of a part per- 
 formance of the original contract, ought to pay for the benefit he has 
 received ; and is held liable on an implied contract to that effect, where 
 he voluntarily accepts the goods. '^ 
 
 § 6-39. When freight is paid in advance, on a contract for the car- 
 riage and delivery of goods, and the vessel is captured or shipwrecked, 
 and the voyage broken up, the shipper is entitled to a return of the 
 
 1 Robinson v. Marine Ins. Co., 2 Jolin. R. 324; Smitli v. Wriglit, 1.5 Barb. 51. 
 
 2 Luke V. Lynde, 2 Burr. 882; Mulloy v. Backer, 5 East, 316. 
 
 3 Smith V. Wilson, 8 East, 437; Hustin v. Union Ins. Co., 1 Wash. C. R. 5.30; Cal- 
 lendar v. Ins. Co. of IST. A., 5 Binn. 525; Dunnett v. Tomhagen, 3 John. W. 1.54. See 
 Hubbell V. Great Western Ins. Co., 74 N. Y. 240. Where a vessel, before commencing 
 a voyage, Is so injured by fire that the cost of her repairs would exceed her value 
 "when repaired, and slie is rendered unseaworthy and incapable of earning freight, the 
 contract of affreightment is thereby dissolved. The Tornado, 108 U. S. 342. 
 
 « The Atlantic M. Ins. Co. v. Bird, 2 Bosw. 105 ; Kinsman v. N. Y. Mutual Ins. 
 Co., 5 Bosw. 460, 474; Welch y. Hicks, 6 Cowen, 504; 7 Cowen, 564; 9 John. K. 19. 
 
 ^ Welch V. Hicks, 6 Cowen, 504; Parsons v. Hardy, 14 Wend. 215; Smith v. Wright, 
 15 Barb. 51; 2 Campb. 466; 7 Term, 377; Williams v. Smith, 2Caines' R. 213; Richard- 
 son V. Young, 38 Penn. St. 169; Rogers v. West, 9 Ind. 400; Luke v. Lyde, 2 Burr. 
 889; Hunter V. Prmsey, 10 East, 394; 13 Mees. & Wels. 229; Liddard v. Lopes, 10 
 East, 526; Atlantic M. Ins. Co. v. Bird, 2 Bosw. 195; Marine Ins. Co. v. United Ins. 
 Co., 9 Johns. 186; Mvilloy v. Backer, 5 East, 316; Western Transp. Co. v. Hoyt, 69 
 N. Y. 235. 
 
CoMMOx Caeeiers. 517 
 
 freight ; the consideration, tlie transportation and delivery, having 
 failed.! -phe vessel being disabled on the voyage, the carrier may earn 
 freight by sending forward the goods by another ship.^ So where a 
 passenger took ship and paid his passage in advance from Amsterdam 
 to Batavia, and on the voyage the vessel put into New York in dis- 
 tress, and the owner there offered him a passage in another ship, larger 
 and more commodious, to Batavia, and he declined the offer ; he was not 
 permitted to recover back any part of the passage money ; since it was 
 his own fault that he did not proceed on his voyage. The contract 
 being entire, a return can only be demanded on showing a failure to 
 fulfill its terms.* 
 
 Passage money, and freight which is the hire or reward paid to the 
 master and owners of vessels for the transportation of goods, and the 
 price paid to the carrier for the conveyance of goods by land, are regu- 
 lated by the same general principles, and recoverable under like circum- 
 stances.'' If there is an agreement between the parties in respect to the 
 freight or hire to be paid, the rights and duties of each grow out of the 
 written stipulations between them.^ There being no express contract, 
 the hire or freight becomes due on delivery at the place of destination ; 
 and bemg paid in advance, it may be recovered back, where it is not 
 subsequently earned ; ^ unless the failure to earn freight is caused by 
 the owner of the goods.' 
 
 § 640. The goods being damaged on the voyage by causes for which 
 the carrier is responsible, the damages are to be deducted from the 
 freight ; either because no freight has been earned, or because the owner 
 ■of the goods has a counterclaim for the loss he has sustained, and a 
 right to have it deducted from the freight.' The carrier does not per- 
 form his contract unless he transports and delivers the goods with 
 
 1 Watson V. Duyckinck, 3 John. R. 335; Phelps v. Williamson, 5 Sandf. 578; Emery 
 V. Dunbar, 1 Daly, 408; Griggs v. Austen, 3 Pick. 20. See same principle applied in 
 Tompkins v. Dudley, 25 N. Y. 275; Tirrell v. Gage, 4 Allen, 245. 
 
 2 Eosetto V. Gurney, 11 C. B. 176; Shipton v. Thorton, 9 A. & E. 314; 10 Crr;, 443; 
 52 Maine, 265. 
 
 8 Detouches v. Peck, 9 John. R. 210; Odgen v. Mutual Ins. Co., 35 If. Y. 418. 
 
 4 MuUoy V. Backer, 5 East, 321; Moffatt v. East India Co., 10 East, 468; Ogden v. 
 Mut. Ins. Co., 35 N. Y. 418; Howland v. The Ship Lavinia, 1 Peters, 123, 126; Griggs 
 V. Austin, 3 Pick. 20; Watson v. Duyckinck, 3 Johns. 335. 
 
 6 Burgess v. Gun, 3 Harr. & John. E. 225; Collins v. Union Transp. Co., 10 Watts, 
 384; Shephard v. De Bernales, 13 East, 567; 5 Bosw. 460; 7 Ellis & B. 633. 
 
 8 Lanev. Penniman, 4 Mass. 91; 2 Sumner, 589; Quimby v. Tanderbilt, 17 N. Y. 
 506; Mintum V. Warren Ins. Co., 2 Allen, 86; Banner v. Equitable Safety Ins. Co., 
 « Allen, 222; 9 Allen, 311; 13 Penn. St. 33; Briggs v. Vanderbilt, 19 Barb. 222. 
 
 ' Griggs T. Austin, 3 Pick. 20; 9 John. R. 210. 
 
 « Angel on Car. §§ 409-413. 
 
518 Law of Bailments. 
 
 diligence and skill ; and if through his neglect or default the goods are 
 injured to an amount exceeding the freight, he cannot recover anything 
 for his services, the defense being properly interposed.^ 
 
 The carrier is also liable for any deficiency in the amount of the 
 goods received by him ; e. g., in a cargo of grain.^ The amount received 
 and delivered being ascertained, he must answer for the deficiency ; ^ 
 as he must where he guarantees the quantity ; * or converts a part of 
 the goods to his own use ; ^ or fails without any legal excuse to dehver 
 any portion of them." 
 
 An acceptance of the goods by the consignee, on the line of the transit 
 or at the place of destination, does not waive the consignee's action for 
 damages to the property by the carrier's negligence.' Nor does a pay- 
 ment of freight under protest prevent a subsequent action to recover it 
 back.' On these grounds the better opinion is that the consignee can- 
 not reject goods brought to him, and discharge himself from freight, on 
 the ground that they are so much damaged and depreciated that they 
 are not equal in value to the freight." And it is quite clear that a con- 
 signee cannot refuse to receive part of a cargo on the ground that the 
 other part has been lost or injured.^" A diminution in the contents of 
 casks containing wine, rum or other liquids, by leakage, fermentation 
 or inherent waste, without fault on the part of the carrier, does not 
 diminish his right to recover freight. On the other hand, a diminution 
 in the quantity arising from causes for which he is answerable under his 
 contract, will deprive him of his freight on the part thus lost.^^ Receiv- 
 
 1 Leech v. Baldwin, 5 Watts, 446; Humphreys v. Eeed, 6 Whart. 435; Edwards T. 
 Todd, 1 Scam. 463; Ewart v. Kerr, 1 McMuU. 141; 1 Rice, 203; Dickinson v. Haslit, 
 3 Harris & J. 345; Schm-eman v. Withers, Anthon N. P. 3.30; Dyer v. Grank Trunk 
 K. Co., 42 Vt. 441. 
 
 2 Wright V. Baldwin, 18 N. Y. 42S. See Rhodes v. jSTewhall, 126 N". T. 574. 
 
 ^ The receipt contained in the bill of lading is prima facie evidence of the amount 
 received by the carrier, and may be explained or contradicted. Abbe v. Eaton, .51 
 N. Y. 410. But the carrier may expressly contract to make good any deficiency in 
 the amount receipted for. Rhodes v. Newhall, 126 IST. Y. 574. 
 
 ' Bissel V. Campbell, 54 N. Y. 353. The amount must be proved like any other fact, 
 by the parties measuring the grain. 
 
 5 Ely V. Ehle, 3 N. Y. 506; Davis v. Pattison, 24 N. Y. 317. 
 
 6 Schieffelin v. Harvey, 6 John. R. 170; Davis v. Pattison, 24 N. Y. 317. 
 
 ' Bowman v. Teall, 23 Wend. 306; Withers v. N. .J. Steamboat Co., 48 Barb. 455; 
 S. C. 51 ]sr. Y. 626; Kent v. Hudson R. R. R. Co., 22 Barb. 278; Howe v. Oswego & 
 Syracuse R. R. Co., 56 Barb. 121. » Harmony v. Bingham, 12 N. Y. 99. 
 
 « Abbott on Ship. 427; Bartram v. McKee, 1 Watts, 39; Basten v. Butler, 7 East, 
 479; Griswold v. N. Y. Ins. Co., 3 John. R. 321; Herbert v. Hallett, 3 John. Gas. 93;' 
 Saltus V. Ocean Ins. Co., 14 John. 138; Seaman v. Adler, 37 Fed. Rep. 268. 
 
 10 M. S. & N. I. R. Co. V. Bivens, 13 Ind. 263. 
 
 11 Nelson v. Stephenson, 5 Duer, 538. 
 
Common Caeeiers. 519 
 
 ing the casks in good order, it is for him to show a loss of their contents 
 by some cause for which he is not responsible.^ 
 
 § 641. It is very common for the owner of a. vessel, taking in a cargo 
 for a given voyage, to procure a policy on the freight to be earned on 
 the transportation of the goods. In effect, the insurer contracts that 
 the vessel shall be capable of performing the voyage so as to earn her 
 freight money, notwithstanding the perils insured against ; and his con- 
 tract is made upon certain implied conditions, among which are these : 
 that the vessel shall be navigated with skill and vigilance, and that 
 being disabled on the voyage, it shall be repaired where that can be 
 done within a reasonable time, and then continue the voyage and earn 
 the freight money. The same diligence and skill which are due to the 
 shipper are also due to the insurer of the freight money,^ or to the in- 
 surer of passage money. ^ 
 
 Expressed in another form, the insurer assumes certam risks of loss 
 on the freight, and no others ; and he becomes liable for loss in those 
 cases only which fall within the scope of his undertaking, or within the 
 risks assumed by him. Eliminating all causes of loss except those 
 covered by the policy, and the underwriter must answer for the ship's 
 failure to earn freight or passage money by a safe conveyance of the 
 goods and passengers to the place of destination.* 
 
 The assured may abandon a vessel to the underwriter, when she is 
 injured by the perils insured against, to a moiety of her value ; that is, 
 when she is so injured that it will cost more than half her value, as 
 stated in the policy, to place her in as good order and condition as she 
 was in when the policy took effect. Having a right to abandon the 
 ship as a technical or constructive total loss, the sMpper cannot require 
 him to repair for the purpose of sending on the cargo ; and so a total 
 loss of the vessel involves the loss of the freight.^ Where the law does 
 not justify the owner in thus abandoning the ship, he cannot by sur- 
 rendering the goods to the shipper free of freight, establish a right to 
 
 1 Arend V. Liverpool, N^. Y. &, PliUa. Steamsliip Co., 6 Lans. 457; S. C. 64 Barb. 
 118; 53 N. Y. 606. 
 
 2 Allen V. Mercantile Mut. Ins. Co., 44 N. T. 431; S. C. 46 Barb. 642; Scottish 
 Marine Ins. Co., v. Turner, 20 Eng. Law & Eq. 24; Hugg v. Augusta Ins. Co., 7 
 How. U. S. 604. 
 
 3 Ogden V. X. Y. Mut. Ins. Co., 4 Bosw. 447; S. C. 35 N. Y. 418. 
 
 *DeWolf V. State M. F. & M. Ins. Co., 6Duer, 191; Ogden v. N. Y. Mut. Ins. Co., 
 supra; and Allen v. Mercantile Mut. Ins. Co., supra. 
 
 5 American Ins. Co. v. Center, 5 Wend. 45. As to the mode of estimating the cost of 
 repairs and the deduction to be made, one-third new for old, see Depuy v. United 
 Ins. Co., 3 John. Cas. 182; Dunham v. Com. Ins. Co., 11 John. 315; Peele v. Mer- 
 chants' Ins. Co., 3 Mason, 27; 3 Wend. 658; 1 Cowen, 265; 5 Cowen, 63; 21 Pick. 456. 
 
520 Law of Bailments. 
 
 recover freight on the policy.^ But where a vessel is insured by one 
 company, and her cargo by another, and the vessel proceeding on her 
 voyage goes ashore in. a storm near the place of destination, and 
 becomes a complete wreck; and the owner abandons the vessel and 
 cargo to the respective underwriters, who accept the same ; the ship- 
 owner is entitled to recover full freight in an action on the policy, not- 
 vnthstanding a part of the cargo is subsequently saved from the wreck, 
 in a damaged condition, by the use of other vessels.^ The transaction, 
 the abandonment and acceptance of the vessel, and of the cargo, and of 
 the freight list, by the respective underwriters thereon, operated as a 
 transfer of the property. 
 
 Disabled on the voyage, after the service has been partly performed, 
 it is the master's duty to earn freight, if he can, by forwarding the cargo 
 by another vessel.' He is under no such obligation, where no other 
 conveyance can be found at the port of necessity, where no freight has 
 been earned, or where the expense of sending on the cargo by another 
 vessel will exceed a moiety of the freight.^ 
 
 "V\nien the master hires another vessel at an intermediate port, to 
 carry forward the goods, the cargo is chargeable on its arrival at the 
 port of destination, with the increase of freight arising from the charter 
 of the new ship ; that is to say, rateable freight to the port of distress, 
 and the freight on the new ship, together with the expenses of trans- 
 shipment. From necessity the master becomes the agent of the owner 
 of the cargo. ^ 
 
 § 642. The carrier has a right to demand payment of his freight as 
 a condition of the delivery of the goods, or final surrender of them to 
 the consignee ; and is nevertheless obliged to take proper steps towards 
 making a delivery, so as to give the consignee an opportunity to examine 
 the goods before he accepts them." The right to retain the goods for 
 the freight grew out of the usage of trade, and is waived by an agree- 
 ment regulating tlie time and manner of paying the freight, without 
 reference to the time when the goods are delivered ' 
 
 1 Allen V. Mercantile Mut. Ins. Co., U X. T. 43T. 
 
 2 Buffalo City Bank v. X. W. Ins. Co., 30 X. Y. 251. 
 
 s Kinsman v. X. T. Mut. Ins. Co., 5 Bosw. 400, 472; 9 John. E. 21; Hubbell v. 
 Great Western Ins. Co., 74 X. Y. 240. 
 
 * American Ins. Co. v. Center, 7 Cowen, .504; 4 Wend. 45. 
 
 6 Searle v. Scovell, 4 Jolm. Ch. R. 218; 4 Wend. 54; Mumford v. Com. Ins. Co., 5 
 John. R. 202; 2 Duer, 204, 216; Worth v. Mumford, 1 Hilton, 1-34. 
 
 8 rUarkson v. Coles, 4 Cowen, 470; Chandler v. Talbott, 18 John. E. 157; ante, § 633; 
 Brittan v. Barnaby, 21 How. (U. S.) 527; The Eddy, 5 Wallace, 481. 
 
 ' Chandler v. Talbott, 18 John. E. 157. See Ward v. Wliitney, 8 N. Y. 442, as to 
 the effect of a failure to give the security for freight by contract. 
 
Common Caeeiers. 521 
 
 § 643. The party receiving goods under a bill of ladiiig, which is by 
 its terms assignable, becomes thereby a party to its stipulations respect- 
 ing freight.^ The bill under which the goods are deliverable to the 
 shipper's order, or to his assigns on paying freight, may be transferred 
 by indorsement from party to party, without rendering each person to 
 whom it is assigned answerable for the freight.^ The carrier's contract 
 is in the first instance with the shipper, and afterwards with the 
 assignee holding the bill of lading and receiving the goods under it. 
 The consignee or the indorsee of the bill becomes a party to it when 
 he receives the goods under it ; ^ and when it is so drawn that the 
 carrier's authority to deliver the goods is conditioned upon the con- 
 signee's paying the freight, he cannot deliver without collecting the 
 freight and after that collect it of the consignor ; * as where goods are 
 sold and consigned to a purchaser, the consignor retaining no interest 
 in them ; ° and where the freight should be collected of the consignee 
 as the owner.^ 
 
 Under the contract as evidenced by the bill of lading, the consignor 
 is liable for the freight ; the carrier's lien being considered as only an 
 additional security given to him for the freight ; so that where he fails 
 to collect his freight of the consignee, without fault on his part, he may 
 collect it of the shipper under the contract.' 
 
 The consignee acting as an agent does not become liable for the freight 
 from the mere fact of receiving the goods ; and yet cannot excuse him- 
 self from liability where he receives the goods before his agency is made 
 known to the carrier.^ 
 
 § 644. A carrier can hardly assign his liabilities under a contract for 
 
 1 Tobin V. Crawford, 5 Mees. & Welsb. 235; 9 id. 716. 
 
 2 Mcrian v. Funok, 4 Denio, 110; Trask v. Duvall, 4 Wash. C. C. 184. The contract 
 is the basis of liability for freight. Martin v. Smith, 58 N. T. 672; N. T. Nav. Co. v. 
 Young, 3 E. D. Smith, 187. See Bills of Lading Act, 18 & 19 Vict. c. Ill; Smurtli- 
 -waite V. Wilkins, 11 C. B. N. S. 842. 
 
 8 Idem; Morse v. Pleasant Brothers, 7 Bosw. 199; ante, § 592. Under a bill of lading' 
 directing the delivery of the goods as addressed on the margin or his or their as- 
 signees or consignees, "upon paying the freight and charges," theconsignee receiving 
 the cargo is liable to the carrier for the freight. Davison v. City Bank, 57 IS'. Y. 81. 
 
 « Thomas v. Snyder, 39 Penn. St. 317. 
 
 6 Krulder v. Ellison, 47 N. Y. 36; 10 English (Moak), 25. 
 
 « Dart V. Ensign, 47 N. Y. 619; Coleman v. Lambert, 5 M. & "W. 502; Amos v. 
 Temperly, 8 M. cfe "W. 798; Barker v. Havens, 17 John. K. 234. 
 
 ' Holt V. Westcott, 43 Maine, 445; Shephard v. De Bernales, 13 East, 568; Gilson 
 T. Madden, 1 Lans. 172; Jobbitt v. Goudry, 29 Barb. 509; Wooster v. Tarr, 8 Allen, 
 270; Pox V. Kott, 6 H. & N. 630; Collins v. Union Trans. Co., 10 Watts, 384. 
 
 8 Boston ife Maine Pi. v. Whitaker, 1 Allen, 497; Sheets v. Wilgus, 56 Barb. 602; 
 Dart V. Ensign, supra. 
 
522 Law of Bailments. 
 
 the conveyance of goods ; and yet where the owner of a canal-Loat con- 
 tracted to carry property from Buffalo to Albany, and in the course of 
 the trip, after he had lost a part of the goods, sold his boat, the remain- 
 der of the cargo being on board, to another person, who received the 
 bill of lading and an order from the shippers of the cargo on the con- 
 signees for the freight, and then performed the remainder of the trip and 
 delivered the bill of lading with the residue of the property to the con- 
 signee ; it was adjudged that the purchaser stood in the place of the 
 former owner of the boat in respect to the claim for freight, and could 
 recover only where such former owner could recover, being entitled to 
 freight on the goods delivered and liable to a recoupment of damages 
 on account of the part not delivered. On the transfer here, the shippers 
 gave to the purchaser of the boat an order on the consignee to pay the 
 amount of the freight to him on the delivery of the cargo with the orig- 
 inal bill of lading ; and the transaction was considered as having sub- 
 stituted the purchaser in the place of the original owner of the boat.^ 
 The freight is allowed on the wheat delivered, and the substituted car- 
 rier can only recover the freight thus earned, after deducting the loss 
 or deficiency .- 
 
 Not being recognized by the shipper, a purchaser of a vessel having 
 goods on board for transportation, must naturally assume the liabilities 
 of the former owner ; and the shipper may insist upon his contract 
 against a party thus coming into the custody of the goods,' or upon the 
 liability imposed upon the carrier by the common law. 
 
 IX. Caeriee's Lien. 
 
 § 645. As a general rule, one who is obliged to receive and carry or 
 perform work on goods has a lien on them. The law which imposes 
 the burden gives also the power of retaining the goods as a security for 
 the services rendered. The carrier's lien is given for the price or hire 
 due for the conveyance of the particular goods on which it rests.* It is 
 a particular or specific lien on the goods for the price of their carriage, 
 entitling the carrier to detain them until that price has been paid. It 
 grew out of a general custom, fostered by the policy of the law for the 
 protection of the bailee and is favored by the courts in furtherance of 
 substantial justice.^ 
 
 1 Hinsdell v. Weed, 5 Deuio, 172. 
 
 3 Ogden V. Coddington, 2 E. D. Smith, 317, .326; Davis v. Pattison, 24 N. T. 317. 
 
 8 Mallory v. Burritt, 1 E. D. Smith, 234; Hunt v. N. Y. & Erie K. Co., 1 Hilton, 
 228; Le Sage v. Great Western R. Co., 1 Daly 306; 2 Daly, 454, 490. 
 
 * Hartshome v. Johnson, 2 Halst. K. 108; Bacharach v. Chester Freight Line, 133 
 Pa. St. 414. 
 
 6 Jeremy on Carriers, 70, 71; Crommelin v. N. T. & Harlem R. Co., 4 Keyes, 90. 
 
Common Caeeiebs. 523 
 
 General liens by the carrier are not favored ; such as a lien for a gen- 
 eral balance, which is not recognized unless it is established by proof 
 of a general usage of trade, so well known and clearly defined as to 
 justify the inference that the parties dealt with each other on the basis 
 of a general lien.* 
 
 § 646. An innkeeper is allowed to enforce his lien on the goods 
 brought by a guest to his inn, without regard to the ownership of the 
 property.^ And it has been urged that, since the carrier like an inn- 
 keeper is obUged to receive all goods tendered to him, there is the same 
 reason to uphold the lien in both cases. But it appears to be settled, 
 that no lien can be enforced in favor of a carrier for the conveyance 
 of goods received by him without authority from the owner ; on the 
 ground that no service being rendered at his request, there is no basis 
 on which to raise an implied contract to pay for the transportation ; * 
 and therefore no legal demand to be secured by a lien.^ 
 
 § 647. The carrier acquires a lien on the goods received for convey- 
 ance, as soon as his liability attaches ; as soon as he receives the goods 
 on a contract of carriage.^ The contract being as we have seen entire, 
 the shipper or customer delivering the goods can only take them back 
 on paying the freight.' On the same ground a passenger securing a 
 seat in a coach and delivering his baggage, cannot resume possession of 
 it without satisfying the carrier's reasonable charges.' Of course a 
 delivery of the baggage must be made by a passenger before the lien 
 can attach ; it must be made by a person who has paid his fare, or is 
 about to enter on the trip or journey. It should be made after, or in 
 the act of securing his passage.^ 
 
 § 648. The carrier has a lien on a passenger's baggage for his fare, and 
 may detain it in his possession until the same has been paid ; but can- 
 not detain the person of his passenger, and cannot seize any property 
 
 iRushforthv. Hadfield, 6 East, 519; Whitehead v. Vaughn, 6 East, 523; Holder- 
 ness V. CoUison, 7 B. & C. 212; Butler v. Woolcott, 2 N. K. 64; Wright v. Snell, 5 B. 
 & A. 350. 
 
 2 Yorke v. Grenaugh, 2 Ld. Eaym. 867; ante, §§ 473, 474; Johnson v. Hill, 3 Starkie, 
 172. 
 
 8 Gilson V. Gwinn, 107 Mass. 126; Everett v. Saltus, 15 Wend. 474; Fitch v. New- 
 berry, 1 Doug. Mich. 1; Clark v. Lowell, 9 Gray, 231; 20 Wend. 267; Robinson y. 
 Baker, 3 Gush. 137; Brower v. Peabody, 13 N. T. 121. 
 
 * Martin v. Smith, 58 N. T. 672. 
 
 6 Tindal v. Taylor, 4 Ellis & B. 219; 28 Eng. Law & Eq. 210; Keyser v. Harbeck, 
 :J Duer, 373; Davis v. Crawford, 4 Const. S. C. 401; Ship Bird of Paradise v. Heyne- 
 man, 72 TJ. S. 545. The lien cannot be enforced unless delivery is made at the place 
 agreed upon. Johnston v. Davis, 60 Mich. 56; McCullough v. Hellweg, 66 Md. 269. 
 
 » Ante, §§ C", 639; 2 E. D. Smith, 195; 10 English (Moak), 25. 
 
 ' Higgins V. JJretherton, 5 Carr. & P. 2. * Ante, §§ 570-576. 
 
524 Law of Bailments. 
 
 belonging to him which has not been dehvered into his custody, as a 
 security for the passage money.^ The contract for the carriage of the 
 passenger and his baggage is one and entire ; and since, in contempla- 
 tion of law, the compensation for the conveyance of baggage is included 
 in the fare, the carrier has a lien on the baggage for the amount due 
 him.^ ^Vhether the delivery of the baggage be considered an independent 
 bailment of goods to be carried, or only accessory to the contract for the 
 carriage of the person, the lien would attach in either case ; but on the 
 theory of a separate contract, on which some of the earlier cases were 
 decided, the lien would be confined to the price or compensation for the 
 carriage of the baggage.' 
 
 In truth, there is but one contract, which is indivisible, and covers 
 both the freight and fare. In an action of trover against the mastei- 
 of a vessel, for a writing-desk and a trunk, containmg wearing apparel, 
 detained for passage money, La-\vki-:xce, J., said : " The master of a ship 
 has certainly no lien on the passenger himself, or the clothes which he 
 is actually wearing when he is about to leave the vessel ; but I think 
 the lien does extend to other projjerty which he may have on board, 
 and that in refusing to deliver them up he is not guilty of any tortious 
 conversion." Passage money and freight are the same thing in legal 
 effect, and there is no lien upon the person for either of them.^ 
 
 § 649. The carrier has, as we have seen, a specific lien on the goods 
 carried by him, for their transportation ; that is, a lien on each parcel 
 for the price of its transportation, caiDable of being detached from the 
 mass, as the same is delivered, and enforced against the residue.^ JU. g., 
 after having delivered part of a cargo of coal or a part of a single con- 
 signment of grain, the carrier may detain tlie residue as security for the 
 entire freight." He cannot do this where the goods covered by the con- 
 signment belong to diflierent owners ; ' or where, though covered by the 
 same consignment, the goods have been sold to different parties." 
 
 1 Wolf V. Summers, 2 Campb. K. (iol; Mason v. Thompson, 9 Pick. E. 288; 104 
 Mass. 117. 
 
 ^ Orange County Bank v. Brown, 9 Wend. 85, 93. 
 
 8 Middleton v. Fowle, 1 Salk, 182; 2 Bos. A- Pull. 419. 
 
 ■■ Wolf V. Summers, supra; Sunbolf v. Alford, 3 M. & W. 248; Eamsden v. Boston 
 & Albany E., 104 Mass. 117. 
 
 ^ Close V. Waterhouse, 6East, .")2.j; 6 East, 622; Schmidt v. Blood, 9Weud. 2G8. The 
 point is further discussed in McFarland v. 'Wheeler, 26 Wend. 467, 478; Boggs v. 
 Martin, 1.3 B. Monroe, 239; Fuller v. Bradley, 25 Penn. St. 123; New Haven, etc., Co. 
 V. Campbell, 128 Mass. 104; Potts v. N. T. & N. E. E. E. Co., 131 Mass. 455; Ware 
 Eiver E. E. v. Vibbard, 114 Mass. 447. 
 
 6 Lane v. Old Colony E., 14 Gray, 143. '' Hale v. Barrett, 26 111. 195. 
 
 8 Wallace v. Woodgate, Eyan & M. 193 ; Lodergren v. Flight, 6 East, 622; Bernal 
 V. Pirn, 1 Gale, 17. 
 
Common Caebiees. 525 
 
 What shall constitute a delivery depends, under some circumstances^ 
 upon the intention of the parties. A transfer of goods from a ship to a 
 -warehouse, on the understanding that they are not to be considered as 
 delivered until the freight is paid, will not divest the carrier's lien ; ^ 
 nor will a landing of goods on a wharf, with a direction to the wharf- 
 inger to detain them till the freight is paid.^ 
 
 § 650. The right of lien is one of the terms implied by law in the 
 contract ; it accompanies the possession, and is not extinguished by a 
 delivery of the goods to an agent with notice of the lien and for the 
 purpose of preserving it ; that is, where the carrier has a right to store 
 the goods.'' So, also, the lien of the master of a vessel on a cargo for 
 freight and charges may be assigned ; and an action of trover for the 
 cargo cannot be maintained against the assignee, unless before suit 
 brought the lien be discharged, or a tender in satisfaction is made. And 
 the Uen is not waived by the mere omission to place the refusal to de- 
 liver or to account, on the specific ground of lien; as where the assignee 
 merely omitted to assert the precise nature of the claim.* 
 
 § 651. A volimtary surrender of the goods to the owner or consignee 
 operates as a waiver or release of the hen. This results from the very 
 nature of the lien ; " namely, a right of one man to retain the property 
 of another in his possession, until his legal charges on it are satisfied."* 
 
 The lien also ceases where the carrier becomes liable to the owner of 
 the goods for damages to them exceeding the charge for freight.' It is 
 also waived by a contract inconsistent with its assertion; as where it 
 provides for the payment of the freight at a time subsequent to the de- 
 livery of the goods, or at a time specified without reference to the time 
 of the delivery.'' The lien is not waived by a special agreement provid- 
 
 iBags of Linseed, 1 Black. 108; Sears v. "Wills, 4 Allen, 212; Cuff v. Ninety-five 
 Tons of Coal, 46 Fed. Rep. 670; The Eddy, 72 U. S. 481. 
 
 2 Wilson V. Kymer, 1 Maule & S. 157; Faith v. East India Co., 4 B. & Aid. 630; 
 Horneastle v. Farran, 3 B. & Aid. 497. 
 
 2 Western Transp. Co. v. Barber, 56 N. T. 544, 548; Mors-le-Blanch v. Wilson, 5 
 English (Moak), 286, 296, Bbett, J.; Bickford v. Metropolitan S. Co., 109 Mass. 151. 
 
 * Everett v. Coffin, 6 Wend, 603, 608. Refusing on one ground, he cannot after that 
 assume another. Judah v. Kemp, 2 John. Cas. 411 ; Adams Express Co. v. Harris, 
 126Ind.'73. 
 
 5 McParland v. Wheeler, 26 Wend. 467; Herbert v. Hallett, .3 John. Cas. 93; Sweet 
 V. Pym, 1 East, 4; Dicas v. Stockley, 7 Carr. & P. 587; Reineman v. C. C. & B. R. 
 R. Co., 51 Iowa, 338; Geneva, I. & S. R. E. Co. v. Sage, 35 Hun, 95; The Eddy, 72. 
 U. S. 481; Egan v. Cargo of Spruce Lath, 43 Fed. Eep. 480. 
 
 'Byer v. Grand Trunk R. Co., 42 Vt. 441; Peebles v. Boston & Albany R., 112 
 Mass. 498. 
 
 ■'Pinney v. Wells, 10 Vt. 104; Chandler v. Belden, 18 John. R. 157; Trust v. Pirs- 
 son, 1 Hilton, 292, 297 ; 2 Bosw. 489, 498; SDenio, 590; Lucas v. Nockells, 4 Ring. 729. 
 
526 Law of Bailments. 
 
 ing for the payment of freight, where the same is consistent with the 
 continuance of the lien.^ 
 
 § 652. Tlie carrier's lien covers his reasonable charges on the goods, 
 including the amount advanced by him thereon to a former carrier, being 
 his reasonable charges upon the goods. The custom and course of busi- 
 ness justify a carrier receiving them from another in the line of transit, 
 in advancing the freight which has accrued upon the goods and in after- 
 wards holding them as a security for the total charges on the line ; with 
 this qualification that the carrier advancing freight receive the goods, 
 in apparent good order .^ A carrier receiving goods that are to be sent 
 forward over successive lines acts for the owner ; and though he makes a 
 mistake and sends them forward, on a wrong line, the carrier advancing 
 freight upon and thus conveying the goods, is entitled to hold them as 
 a security for his reasonable charges and advances." 
 
 The law and custom justify the last, in a line of successive carriers, 
 in advancing the freight due on the goods ; they do not authorize him 
 to advance all claims upon the goods. If a part of the freight has 
 been paid in advance, it cannot be collected the second time.^ It is the 
 duty of each carrier to ascertain the authority of the party from whom 
 he receives the property ; ° and it is no more than just to leave the 
 carrier to his action, where he advances more than is due, on goods 
 received by him from a prior carrier. 
 
 § 653. When the general owner of a vessel parts with her, under a 
 charter-party for a specified time or for a given voyage, and delivers 
 the possession and control of the vessel to the charterer, the latter is 
 considered the owner for the voyage, and has a lien for freight ; or he 
 may maintain an action for it where he has delivered the cargo.' The 
 charterer is deemed the owner for the voyage, where he has under the 
 contract the exclusive possession, command and navigation of the ship. 
 But where the general owner retains the possession, command and 
 navigation of the ship, and contracts to carry a cargo on freight for the 
 
 1 The Kimball, .3 Wallace, 37. 
 
 ^Monteithv. Kirkpatrick, .3 Blatchf. 279; Bissell v. Price, 1 '. 111. 40S; Bowman v. 
 Hilton, 11 Ohio, .303; Lee v. Salter, Hill & Denio, 163. 
 
 8 Briggs V. Boston, etc., R. E. Co., 6 Allen, 24G; Western Transp. Co. v. Hoyt, 69 
 N. T. 230. But a carrier who has received goods from another carrier with knowledge 
 that the shipper had directed shipment by the first carrier over a different connecting 
 route, has no lien upon the goods either for his own charges or for charges advanced 
 to the fii-st carrier. Hill v. Denver & R. G. R. E. Co., 13 Colo. 3.5. 
 
 * Travis v. Thompson, 37 Barb. 2.30; 1 Doug. (Mich.) 1. 
 
 ■' Dark v. Lowell E., 9 Gray, 231. 
 
 •^ Clarkson v. Edes, 4 Cowen, 470; Wilson v. Morgan, 4 Eobt. .58, 67; Holmes v. 
 Pavenstedt, 5 Sandf. 07. 
 
Common Caebieks. 527 
 
 voyage, the charter-party is considered a mere affreightment, sounding 
 in covenant ; and the freighter is not clothed with the character or 
 legal responsibility of ownership. In the first case, the general freighter 
 is responsible for the conduct of the master and mariners during the 
 voyage. In the latter case the responsibility rests on the general 
 owner.^ 
 
 If the vessel is in effect let to hire for a voyage or for a term, the 
 charterer acquires for the time being a property in the vessel, and stands 
 in the place of its owner ; and is entitled to demand and collect the 
 freight. Whether he is to be considered the owner or not, depends 
 upon the terms of the charter-party, and the interest which is given 
 to the charterer under it.^ 
 
 § 654. The carrier's lien is, as we have said, the right to detain the 
 goods entrusted to him, until his hire or reasonable reward has been 
 paid ; it is a means of enforcing payment, but does not authorize him 
 to sell the goods for the purpose of paying himself.^ It is neither a 
 jus ad rem, nor a jus in re, but a simple right of detainer ; hence, it is 
 not attachable as personal property, or as a chose in action of the per- 
 son entitled to it.* True, the carrier has a special property in the goods 
 entrusted to him, whilst in his possession, so that he may maintain an 
 action against any one who interferes with them, or for any injury done 
 to the goods * — a remedy given him for the defense of the property, 
 based upon his right of possession. 
 
 It is clear that the carrier's lien cannot be separated from his demand 
 for services bestowed upon the goods ; it being a right accessary to that 
 ■demand, accorded to the carrier as a security for its payment." And as 
 it grows out of the relation between the carrier and his employer, it 
 cannot be continued after that relation has terminated by a tender of 
 the amount due or by a voluntary delivery of the goods. 
 
 The interest of the general owner of goods in the hands of a carrier 
 may be reached by his creditors ; subject to the carrier's lien. The 
 
 1 Marcadier v. Chesapeake Ins. Co., 8 Crancli, 49. 
 
 ^Gracie v. Palmer, 8 Wheat. 605; Hutton v. Bragg, t Taunt. 14; Mactaggert v. 
 Henry, 3 E. D. Smith, 390. 
 
 ^Telv. 67; Jones v. Thurloe, 8 Mod. 172; Jones v. Pearle, 1 Str. 556; Chase v. 
 "Westmore, 5 Maule & Selw. 185; 5 Wend. 33. 
 
 * Meany v. Head, 1 Mason, E. 319. The demand for the freight may be reached by 
 a creditor of the carrier. Ante, § 316. 
 
 5 Taylor v. , 2 Ld. Kaym. 792; ante, § 614; Fitzhugh v. Wyman, 9 
 
 N. T. 559; Merrick v. Brainard, 38 Barb. 574. 
 
 6 Meany v. Head, 1 Mason, 319; ante, §§ 101-105. When a general owner brings 
 an actionfor injury to the goods, the carrier's lien is no defense unless it is interposed 
 by his authority. Ames v. Palmer, 42 Maine, 197. 
 
528 Law op Bailments. 
 
 goods may be taken on an attachment, or the carrier may be summoned 
 as a trustee for the owner ; ^ or the goods may be taken from the 
 carrier by the true owner, in an action of replevin, so as to defeat his 
 lien.^ 
 
 X. Reseedies against the Careiee. 
 
 § 655. In an action agatinst a common carrier for refusing to receive 
 goods for carriage, it is necessary that the complaint should allege facts 
 sufficient to constitute a cause of action ; it must allege that the defend- 
 ant was a common carrier, at the time in question, of goods and chattels 
 of the kind tendered to him, specifying his route ; that the plaintiff 
 tendered to him as such common carrier at a certain place, to be named, 
 where he was accustomed to receive such articles, goods of a certain 
 value for carriage to a given place on his route ; that the defendant 
 had the convenience for receiving and conveying the same as requested; 
 that the plaintiff was ready and Tidlling, and then offered to pay to the 
 defendant such sum of money as the defendant was legally entitled to 
 receive for the receipt and carriage of the goods ; and that the defend- 
 ant, not regarding his duty as such common carrier, neglected and 
 refused to receive and carry the goods ; whereby the plaintiff was 
 forced and compelled to carry the goods himself at great expense, and 
 was injured and damaged to the amount sought to be recovered.^ 
 
 It is not necessary to aver a strictly legal tender, a term which is only 
 applicable where an absolute duty, such as the payment of an antece- 
 dent debt, is imposed on the party making it. The acts to be done by 
 both parties, namely, the receipt of the goods, and the payment of a 
 reasonable sum for their carriage, being contemporaneous acts ; the car- 
 rier being bound to receive the goods on the money being paid or 
 tendered, and the bailor to pay the reasonable amount demanded, on 
 the carrier's taking charge of the goods ; it is enough to aver readiness 
 and an offer to pay. It would be repugnant to common sense to require 
 the party offering goods for carriage to go through with the useless 
 ceremony of laying down the money, in order to take it up again, where 
 the party to whom they are offered refuses to accept the goods. ^ 
 
 § 656. Where the carrier's service is to be performed mainly within 
 
 1 Adams v. Scott, 104 Mass. 164; Van Winkle v. V. S. Mail S. Co., 37 Barb. 221. 
 
 2 Bliven v. Hudson Kiver E. Co., 3G X. Y. 403; 37 Barb. 122. 
 
 3 Pickford v. The Grand .Junction Railroad Company, 8 Sires. & Welsb. K. 372. 
 The substance of the declaration in this case is stated in the text ; the action was 
 decided on a special demurrer, assigning for cause that plaintiff did not aver a tender; 
 held that the law does not demand in such a case a strictly legal tender. 
 
 * Rawson v. .Johnson, 1 East i:. 203; 7 Taunt. R. 314; 2 Bos. & Pull R. 447. 
 
Common Caheiers. 529 
 
 the limits of tidewater, the proceedings against him may be had in ad- 
 miralty, either in rem against his vessel, or in personam against the 
 master and owners. The principles applicalDle are the same as at com- 
 mon law. The libel, in the form of a petition to one of the judges of 
 the court, sets forth the cause of action with proper allegations to bring 
 the action within the jurisdiction of the court. The answer of the re- 
 spondents, in form very nearly the same as in equity practice, is then 
 filed, admitting the allegations, which are not denied and averring the 
 facts constituting the defense.^ 
 
 § 657. But the usual remedy against the carrier is by an action at 
 law, grounded either on the contract, as an action of assumpsit, or on 
 his public duty, as an action on the case.^ The action in the nature of 
 trover may also be sustained against him, where it can be shown that 
 he has been guilty of a conversion of the property.* 
 
 The breach of his public duty is a tort, for which the carrier is liable 
 to an action on the case, founded upon the custom.* Since the abolition 
 of the forms of actions and pleadings heretofore used in this State, we 
 have nominally no di stinction between one kind of action and another ; 
 but inasmuch as the law establishing the rights of parties remains 
 unchanged, it is still just as essential and important as ever that the 
 pleadings should be drawn so as to raise a right of recovery recognized 
 by the law.^ In doing this it is indispensable that every fact should be 
 alleged which is requisite to constitute the cause of action." If more 
 than one cause of action be stated in the complaint, each cause of action 
 must be stated separately ; and so in respect to the answer, each de- 
 fense or ground of defense must be stated separately.' 
 
 Under the new procedure the plaintiff may unite several causes of 
 action in the same complaint, where they all arise out of contract, ex- 
 press or implied ; but he cannot allege in the same complaint a cause 
 of action arising on contract, and another for injury to property, with 
 or without force ; nor can he in an action to recover personal property, 
 
 1 The New Jersey Steam Navigation Co. v. The Merchants' Bank of Boston, 6 
 Howard's Kep. 344; Citizens' Bank v. Nantucket Steamboat Co., 1 Story if. 16. 
 
 2 Ross V. Johnson, Burr. 2825; Nolton v. "Western R. R. Co., 15 N. T. 444; Merritt 
 V. Earle, 29 N. T. 115. The liability of a carrier for non-delivery of goods may be 
 enforced in either form of action. Catlin v. Adirondack Co.,. 11 Abb. New Cas. 
 .377. 
 
 ■5 Baldwin v. Cole, 6 Mod. E. 212; Richardson v. Atkinson, 1 Str. R. 576; Packard 
 V. Getman, 6 Cowen R. 757; Tolano v. Steam Nav. Co., 5 Robt. 318. 
 
 4 Jeremy on Car. 116. See Rich. v. N. Y. C. & H. R. R. R. Co., 87 N. T. 395. 
 
 5 Hall v. Southmayd, 15 Barb. R. 32. 
 
 « Barker v. Russell, 11 Barb. R. 304; 7 id. 80; Russell v. Clapp, 7 id. 482. 
 ' Boyce v. Brown, 7 Barb. R. 80. 
 
 .34 
 
530 Law of Bailments. 
 
 with or -without damages for the withholding thereof, insert a count 
 for injury to tlie sarae.^ 
 
 In general, the plaintiff must now state in his complaint all the facts 
 which constitute his cause of action, whether arising e.c contractu or e.r. 
 delicto ; and every fact is to be deemed constitutive, in the sense of the 
 Code, upon which the right of action depends. Every fact which the 
 plaintiff must prove to enable him to maintain his suit, and which the 
 defendant has a right to controvert in his answer, must be distinctly 
 averred ; and every such averment must be understood as meaning 
 what it says, and, consequently, is only to be sustained by evidence 
 which corresponds with its meaning.^ 
 
 § 65S. Action on the Case. This form of action, against common 
 carriers, is of very ancient use, and proceeds on the theory of charging 
 them with the breach of a public duty, growing out of their employ- 
 ment, and imposed by law. The action is in some respects more con- 
 venient than an action founded on contract, which is of modern use.*' 
 The action on the case is for a tort or misfeasance, while a suit in 
 assumpsit is always brought for the breach of either an express or 
 implied promise. 
 
 The form of action against a common carrier is a question which has 
 been considerably agitated in the English courts, and has been different 
 as the gravamen was supposed to arise upon a breach of public duty, 
 or the breach of mere express promise. Each form has its advantages 
 and disadvantages. If assumpsit is brought, or the action be laid as 
 arising upon contract, it may be abated for the non- joinder of proper 
 parties ; but it survives against the personal representatives, and the 
 common counts, on a general undertaking may be joined in the declara- 
 tion. If the action be laid as arising ex Jelicto, and founded on the 
 custom, the suit does not abate for the non -joinder of all the proper 
 parties ; and, in a proper case, a count in the nature of trover may be 
 joined.* 
 
 In an action against six defendants, as proprietors of a steamboat, in 
 which they were charged as common carriers, for the loss of property 
 put on board for transportation, and the gravamen was stated to have 
 arisen from a breach of duty, it was held that a plea in abatement for 
 the non-joinder of other proprietors, who were jointly liable with the 
 
 1 See Code of Civil Procedure, § 484; Colwell v. N. T. & Erie E. E. Co., 9 How. Pr. 
 311. 
 
 2 Garvey v. Fowler, 4 Sand. R. 665; Bristol v. E. & S. E. R. Co., 9 Barb. 158. 
 8 Bretherton v. Wood, 3 B. & Bing. E. 54. 
 
 * Orange Bank v. Brown, ", WcaA. R. 158; Boson v. Sandford, 2 Show. 478 ; 1 Show. 
 29, 101; 3 Mod. 3:il; 2 Salk. 440. 
 
Common Careiees. 531 
 
 defendants, was bad ; that the action being several as well as joint, 
 the demurrer to the plea in abatement was well taken.i 
 
 § 659. An action solely upon the custom is an action of tort, in which 
 all or any number of the owners of a vessel, coach or other kind of con- 
 veyance, used by common carriers, may be sued, and on a verdict against 
 all or a part only of those against whom the action is brought, judg- 
 ment may be rendered. The plaintiff has his choice of remedies, either 
 to bring an action in the nature of assumpsit or case ; but when one or 
 the other form of action is adopted, it will be governed by its own rules. 
 If the plaintiff, as is sometimes done, states the custom, and also relies 
 on an undertaking, general or special, the action, though it may be 
 said to be ex delicto quasi ex contractu, is in reality founded on the con- 
 tract, and is treated as such.^ 
 
 In an action on the case founded on the custom, the complaint al- 
 leges that the defendant was a common carrier of goods and chattels 
 on a certain route, and that plaintiff's goods were delivered to him for 
 carriage to a given place for a certain freight and reward, whereby it 
 became the defendant's duty to carry and deliver the goods- safely at 
 the place of destination, and concludes by alleging a breach of duty to 
 the plaintiff's damage. The plea or answer is, not guilty of the breach 
 of duty .2 A breach of this duty is a breach of the law; and for this 
 breach an action lies, founded on the common law, which action wants 
 not the aid of a contract to support it. 
 
 It is not necessary in such an action to prove a contract, nor even to 
 allege a consideration, for the negligence or breach of duty is the cause 
 of action, and not the assumpsit.* It is sufllcient, therefore, to establish, 
 
 1 Orange Bank v. Brown, 3 Wend. R. 158. 
 
 ^ Max V. Roberts, 12 East R. 89, decided in 1810. For a discussion of what ar3 some- 
 times termed " torts founded upon contract," see Rich v. N. T. C. & H. R. R. R. Co., 
 87 X. Y. 382: Addison on Torts (6th ed.), 16. A complaint against a carrier, which 
 alleges that the defendant's business was to carry goods for hire; the delivery of goods 
 to the defendant; the payment of charges; the undertaking of defendant to deliver; 
 the loss of the goods ; and the amount claimed, with interest, states a cause of action 
 upon contract. Catlin v. Adirondack Co., 11 Abb. N^ew Cas. 337; Reversing S. C. 20 
 Hun, 19. The liability of the carrier is the same whether the action is brought upon 
 contract or upon the duty, and the evidence requisite to sustain the action in either 
 form is substantially the same ; and where there is an actual contract to carry, it is prop- 
 erly said that the liability in an action founded upon the public duty is co-extensive 
 with the liability on the contract. Carroll v. Staten Island R. R. Co., 58 N. T. 126, 
 134, 135. 
 
 ' Bretherton v. Wood, 3 Brod. & Bing. R. 54, decided in 1821; Jeremy on Car. 117; 
 McCall V. Forsyth, 4 Watts & Serg. (Penn.) E. 179; Smith v. Seward, 3 Barr. E. 
 542. 
 
 * Bastard v. Bastard, 2 Show. 81 ; Jeremy on Car. 5 ; 3 Brod. & Bing. R. 54. 
 
532 Law of Bail:mexts. 
 
 by pleading and proof, that the defendant received the plaintiff's goods 
 as a common carrier for transportation, and lias been guilty of a breach 
 of his duty, resulting in damages to the owner of tliem.^ Without any 
 agreement whatever, the bare delivery of the goods to the carrier, im- 
 poses upon him the obligation to convey and deliver them according to 
 the directions which he receives ; and a neglect to perform his duty and 
 comply with such directions subjects him to an action. For the law 
 pronounces his failure in duty a tort or misfeasance, for which he must 
 answer in damages to the party injured.^ 
 
 § Gijo. There is this further convenience attending an action on the 
 case ; it is enough that the proof conforms substantially to the aver- 
 ments in the complaint ; ^ while in an action on a contract the proof 
 must conform closely to the allegations, and a variance will be extremely 
 inconvenient, if not fatal.* 
 
 It has also been customary, and in many cases found quite convenient, 
 to join in this action with counts against the defendant as a common 
 carrier, a count in trover.'' Trover was held to lie where the goods had 
 been lost to the owner by the act of the carrier, though without any 
 intentional wrong; as where they had been delivered to the wrong 
 person by mistake, or on a forged order, or had been tortiously converted 
 by him." It did not lie for the mere omission of the carrier ; as where 
 the property has been stolen, or lost through his negligence, and so 
 could not be delivered to the owner. Mere nonfeasance does not work 
 a conversion of the property ; and hence, although the owner might 
 maintain an action of another kind, it was ruled that he could not main- 
 tain trover.' A recovery on a count in trover could be had only where 
 the defendant had been guilty of an act of conversion. The goods being 
 in his possession, evidence of a demand and refusal \^ prima facie proof 
 
 iWeed V. The S. K. E. Co., 19 "Wend. R. 540. Plaintiff's ownership of the 
 goods should be alleged. Pennsylvania Co. v. Poor, 10.3 Ind. 553. 
 
 2Coggs V. Bernard, 2 Ld. Kaym. ".):>!). See also the old forms of a declaration in case 
 against a common carrier, 1 Cliitty PI. 248. Proof that goods were delivered to a 
 carrier in good order and were received from him in bad order is enough, without 
 more, to sustain a finding of negligence. Koenigsheim v. Hamburg Am. Packet Co., 
 12 Daly, 123. 
 
 3 Cook V. The Champlain Trans. Co., 1 Denio E. 1)1: Wyld v. Pickford, 8 Mees. 
 & Welsh. I^. 443. 
 
 * Weed V. S. & S. E. R. Co., 19 Wend. E. 540. 
 
 5 Hawkins v. Hoffman, 6 Hill R. 5SG. 
 
 5 Toul V. Harbottle, Peake Cas. 49; Devereux v. Barclay, 2 B. & Aid. 102; Stephen- 
 son V. Hart, 4 Bing. 476. 
 
 ' Ross V. Johnson, 5 Burr. 2525 ; Dewell v. Maxon, 1 Taunton R. 381 ; Anon. 4 Esp. 
 E. 157; Buller, N. P. 45; 1 Campb. E. 409; 2 Ld. Eaym. 792; Jeremy on Car. 120; 
 Magnin v. Dinsmore, 70 N. T. 410; Scovill v. Griffith, 12 N. Y. 509. 
 
CoMJioN Caeeiers. 533 
 
 of conversion.^ This proof may be overcome by any testimony that 
 shows he did not in fact convert them. 
 
 § 661. It is not easy to determine how far, under the Code of Pro- 
 cedure in this State, causes of action formerly capable of being joined 
 may now be united in the same complaint. In general terms, it may 
 be stated that the plaintiff cannot, in an action to recover personal prop- 
 erty, allege a cause of action for injury to property, arising through 
 his neglect with or without force. In an action for the recovery of 
 goods and chattels he may claim " damages for the withholding there- 
 of ; " and he may include under that term such damages as have resulted 
 from the negligent manner in which the defendant has stored or trans- 
 ported them.^ 
 
 But the form of the action does not alter the transaction, nor essen- 
 tially vary the principles applicable to the carrier's liability. Under 
 the old practice, the true test, whether counts might be joined in the 
 same action, was to consider whether there might be the same judg- 
 ment in both or all of them.' 
 
 § 662. Action on the Contract. An action of assumpsit lies upon all 
 implied contracts as well as upon all written contracts not under seal, 
 and is based upon the promise or undertaking of the party defendant. 
 It is the usual and well defined remedy for the breach of a contract, 
 whether expressed in terms or raised by implication of law. 
 
 Every person who undertakes to carry, for a compensation, the goods 
 of all persons indifferently, is, as to the liability imposed, to be consid- 
 ered a common carrier. There is an implied undertaking on his part to 
 carry the goods safely, and on the part of the owner to pay a reasonable 
 compensation. No special agreement is necessary to enable the owner 
 to maintain assumpsit against the carrier for the breach of his duty, 
 aior to enable the carrier to maintain assumpsit for his compensation. 
 There is, therefore, a perfect contract implied between the carrier and 
 liis employer.* In like manner a contract to carry the ordinary luggage 
 flf the passenger is implied from the usual course of the business ; and 
 the price paid for fare is considered as including a compensation for 
 carrying the freight.^ 
 
 § 663. It is customary and proper, in an action against the carrier, 
 founded on his contract, to allege by way of inducement that the defend- 
 
 ^ Dwight V. Brewster, 1 Pick. R. -50; Hawkins v. Hoffman, 6 Hill, 586. 
 
 2 Code of Civil Procedure, § 484; Smith v. Orser, 43 Barb. 187. 
 
 3 Dickson v. Clipton, 2 Wils. 319; Covett v. Eadnidge, 3 East E. 63. 
 * Orangf Bank v. Brown, 3 Wend. 158, 161. 
 
 ^Orange County Bank v. Brown, 9 Wend. 85; Pardee v. Drew, 25 Wend. 459; 
 Hawkins v. Hoffman, 6 Hill, 586. 
 
534 Law of Bailments. 
 
 ant was a common carrier of goods and chattels, specifying his route ; ^ 
 and that the plaintiff delivered to him as such common carrier, and at 
 his request, certain goods, describing them with a certainty of descrip- 
 tion to a common intent, and specifying their value, to be securely 
 carried and safely delivered to the consio-nee at the place of destination, 
 to be named ; that the defendant in consideration thereof, and of the 
 reward to be paid to him in that behalf, undertook and faithfully prom- 
 ised the plaintiff to take care of the said goods and chattels, and safely 
 and securely carry and convey, and deliver them for the plaintiff accord- 
 ing to his undertaking, and the complaint then concludes by alleging a 
 breach of the undertaking by the defendant, neglecting and not regard- 
 ing his duty as such carrier. To this is commonly added a general 
 count for not taking due and proper care of the goods ; and sucli other 
 counts, grounded on the contract, as may be applicable to the case.^ 
 
 Proceeding upon a contract, it is necessary to sue all the joint con- 
 tracting parties, and only such as are liable on the same contract ; and 
 the contract must be proved as laid in the complaint.' As every legal 
 and valid promise must be supported by a consideration, it is essential 
 that the complaint should aver a consideration as well as an undertak- 
 ing,* and that the consideration should be correctly stated according to 
 the terms of the agreement.'' 
 
 § 664. A contract in the alternative, to transport fifteen or twenty 
 tons of marble from one place to another, must be stated in the declara- 
 tion according to the terms of it. If stated as an absolute contract for 
 the transportation of twenty tons, and not fifteen or twenty tons, the 
 variance is fatal, under the common law practice.*' So, where the dec- 
 laration stated that, in consideration of thirty-five dollars to be paid by 
 the plaintiff, and the agreement of the plaintiff to pay the defendant 
 three dollars per ton, and such canal tolls as should be charged to the 
 defendant, the defendant agreed to transport twenty tons of marble 
 from Fort Ann to Weedsport ; and the agreement proved was to trans- 
 port twenty tons for three dollars per ton and the tolls, and that the 
 thirty dollars should be advanced towards the tolls ; the variance was 
 considered substantial and manifest.' It is a sufficient averment of a 
 consideration that the defendant, being a common carrier, for a certain 
 
 1 1 Chitt. PI. 115, 418; 2 id. :B.J, 7th ed. 
 
 ^ Pozzi T. Shipton, 8 Adolph. & Ellis R. 963. See Catlin v. Adirondack Co., 11 
 Abb. New Cas. 337. 
 3 Patten v. Magrath, 1 Rice (S. C), R. 162; Walcott v. Canfield, 1 Conn. R. 194. 
 < Corbett v. Packington, 6 Bam. & Cres R. 268; Smith v. Seward, 3 B^ E. 342. 
 5 Stone V. Knowlton, 3 Wend. E. 374; Penny v. Porter, 2 East R. 2. 
 « 3 Wend. R. 374. 
 ' Stone Y. Knowlton. 3 Wend. 374; Tate v. Whellings, 3 Term. R. .j31. 
 
Common Cakbiees. 535 
 
 hire or reward, received the goods for carriage.^ If the carrier limits 
 his responsibility, that need not be noticed in the pleading ; but if a 
 stipulation be made that, under certain circumstances, as in the case of 
 fire and robbery, he shall not be liable at all, that should be stated.^ 
 
 In brief, when the action against the carrier is baeed on the contract, 
 either expressed or implied, between the parties, it is sufficient here to 
 say, that the general principles which have been held to govern the 
 action of assumpsit become applicable ; and the plaintiff has the right 
 of uniting in the same suit as many causes of action against the defend- 
 ant as he may have, belonging to the same class.' If the action be 
 brought against several, he must establish a joint liability against all 
 the persons whom he has sued, and the contract must be proved as 
 stated.* Though he cannot in the same action state a cause of action 
 not in the same class, he may recover on any evidence which shows a 
 breach of the contract, whether arising through the neglect or wrongful 
 act of the defendant ; ^ and the evidence is substantially the same as 
 that required in an action on the case. 
 
 § 665. Parties to the Action. The contract for carriage of goods 
 implied by law is with the owner of them, and hence the action of 
 assumpsit for the enforcement of the contract should be brought in his 
 name, whether he be the consignor or consignee of the goods." Having 
 the legal title, he has the right of action.' The consignor cannot bring 
 the action for a loss of the goods, where the title passes to the consignee, 
 on the delivery of them to the carrier ; as it does where a merchant 
 sends a written order for goods, with directions to send them by canal 
 or by rail, and they are sent accordingly.* The sale being valid, a de- 
 livery to the carrier operates as a delivery to the purchaser ; the prop- 
 
 1 Clark V. Gray, 6 East E. 564. 
 
 2 Latham v. Eutley, 2 Barn. & Cres. E. 20. See Lake Shore, etc., Ey. Co. v. Ben- 
 nett, 89 Ind. 457; Hall v. Pennsylvania Co., 90 Ind. 459. 
 
 8 Code of Civil Procedure, § 484. 
 
 ' Wilsford V. Wood, 1 Esp. E. 182. 
 
 5 Sleat V. Fagg, 5 Bam. & Aid. E. 349. See Carroll v. Staten Island E. E. Co., 58 
 N. T. 126, 134, 135. 
 
 « Jeremy on Car. 123; Price v. Powell, 3 N. T. 322; Greene v. Clark, 12 N. T. 343; 
 Krulder v. Ellison, 47 N. Y. 36; CNeill v. N. T. C. & H. E. E. E. Co., 60 N. T. 138. 
 This is the general rule. It has some exceptions. Where the consignor, although 
 not the general owner, has a lien upon or special interest in the goods and makes the 
 contract and pays the consideration for the carriage, he may bring an action for a 
 breach of the contract in his own name in order to protect his rights. Swift v. Pa- 
 cific Mail Steamship Co., 106 N. T. 206. 
 
 ' 1 Chitty PI. 1; Ely v. Ehle, 3 N. T. 506; Duff v. Budd, 6 Moore, 469; Stephen- 
 son V. Hart, 4 Bing. 476. 
 
 8 Krulder v. Ellison, 47 N. T. 36; Magruder v. Gage, 33 Md. 344. 
 
536 Law of Bailments. 
 
 erty immediately vests in him, and he alone can bring an action for any 
 injury done to the goods ; ^ they are at his risk ; the vendor retains only 
 the right to stop them in their transit, in case the purchaser becomes 
 insolvent before they reach him. 
 
 On a verbal sale ot specific goods or chattels a delivery of them to 
 the carrier chosen or de signated by the purchaser, satisfies the statute of 
 frauds ; because here the purchaser names the person or party to whom 
 the delivery is to be made, and the delivery being so made, the sale is 
 complete and the title passes.^ 
 
 On the other hand, where the buyer gives a verbal order for goods 
 without examining them, and directs them to be sent to him without 
 naming the carrier, a delivery of them to a carrier is not sufficient to 
 satisfy the terms of the statute. The title does not pass on the delivery 
 to the carrier.^ And for the same reason, where an order is given for a 
 certain quantity of goods, of a given quality, and there has been no 
 selection or separation of them from the bulk, a delivery by the seller 
 to the carrier named by the purchaser does not satisfy the statute ; 
 because the carrier is not appointed as the buyer's agent to accept the 
 goods witlihi the meaning of the statute.^ The purchaser must accept 
 and receive, in order to render the sale valid and vest the title in him.^ 
 
 § 666. "When goods are shipped for the account and risk of the con- 
 signee, he paying the freight, and it is so expressed in the invoice and 
 bill of lading, the delivery to the carrier is considered as a delivery to 
 the consignee, and he alone can bring an action against the carrier for 
 a failure to deliver the goods. ISTo other fact appearing, the consignee 
 is to be treated as the owner of the property.^ The goods being placed 
 at his absolute disposal, the legal presumption is that he is the owner ; 
 and though not the absolute owner he may recover the goods against 
 any party not claiming under the true owner.' 
 
 1 Button V. Solomonson, 3 Bos. & Pull. -"iSi; Ilsley v. Stubbs, 9 Mass. 63. 
 
 2 Cross T. O'Donnell, 44 N. Y. 661; Glen v. Wiitaker, 51 Barb. 451; People v. 
 Haynes, 14 Wend. 546. 
 
 3 liodgers v. Phillips, 40 X. Y. 51!); Maxwell v. Brown, 39 Maine, 98; Frostburgh 
 M. Co. V. X. C. Glass Co., 9 Cush. 115. The consignee in such case bas no right of 
 action based on the loss of the goods. O'Neill v. X. Y. C. & H. R. P. R. Co., 60 
 N. Y. 13S. 
 
 ■* Norman v. Phillips, 14 Mees. & Welsh. 27S; Mendith v. Meigh, 2 Ellis & B. 364; 
 Allard v. Greasert, 61 N. Y. 1 , 5. 
 
 5 Caulkins v. Hellman, 47 N. Y. 449; Stone v. Browning, 51 N". Y. 211; Brand v. 
 Focht, 3 Keyes, 409. 
 
 8 Potter V. Lansing, 1 John. R. 215; Sweet v. Barney, 23 N. Y. 335; Thompson v. 
 Fargo, 49 N. Y. 188; 03 N. Y. 479. 
 
 ' Fitzhugh V. Wimau, 9 N. Y. 559 ; Green v. Clark, 12 N. Y. 343. 
 
Common Carriers. 537 
 
 Between the parties to it, the contract embodied m a bill of lading- 
 cannot be varied by parol evidence : as against other parties, it is of no 
 force. It canijot therefore be used to defeat the true title to the prop- 
 erty, as against any third party .^ 
 
 "When the consignor acts an an authorized agent in shipping goods, 
 he is considered as having authority to agree upon the terms of trans- 
 portation ; 2 and the stipulations agreed upon by him will bind his 
 principal.' 
 
 § 667. On a sale of goods to be carried and deUvered to the vendee 
 at his place of business, the carrier's contract is with the vendor ; the 
 vendor assuming the expense of the transportation.* And so in like 
 cases, where the title does not pass on a delivery to the carrier ; the 
 bailor is entitled to enforce the contract with the carrier.^ 
 
 We need not consider the subject further in this connection. The 
 consignor shipping his own goods has the right -to enforce his contract 
 with the carrier ; and he has the right to transfer that contract, with 
 the goods covered by it, so as to vest in the transferee the title and give 
 him the usual remedies for any injury to the property, or for a conver- 
 sion of it." 
 
 When the plaintiff brings an action of assumpsit, he must take care 
 to bring his suit against all who are jointly liable on the contract ; and 
 he must also take care not to make any persons parties defendant, who 
 are not liable on the contract.' 
 
 § 668. Burden of Proof . The burden of i^roof is imposed upon one 
 party or the other, by the substance and form of the pleadings.^ Upon 
 non-assumpsit pleaded to an action on contract, the plaintiff holds the 
 affirmative of the issue, and the onus of making out a promise is upon 
 him; but he does not hold the affirmative upon all the issues that may 
 arise in the action. The defendant, without controverting the promise, 
 may set up in his plea or answer, payment, release, or an accord and 
 
 iCovell V. HUl, 6 N. T. 374; Everett v. Saltus, 15 "Wend. 414; 20 Wend. 267; 
 Brewer v. Peabody, 11 How. Pr. 492; 13 IST. T. 121; M. & T. Bank c. F. & M. Nat. 
 Bank, 60 N. Y. 40. 
 
 2 Xelson V. H. K. R. K. Co., 48 N. T. 498. 
 
 8 "WTfite V. Ashton, 51 K. T. 280. 
 
 *Dunlapv. Lambert, 6 CI. & F. 600; N. T. Fireman's Ins. Co. v. De'Wolf, 2 
 Cowen, 56, 105; Ludlow v. Bowne, 1 John. E. 1; Davis v. James, 5 Burr. 2680. 
 
 ' Gilbert v. N. T. Central & Hudson R. R. R. Co., 4 Hun, 378; Coyle v. Western 
 R. Cor., 47 Barb. 152. 
 
 "Western Transp. Co. v. Hawley, 1 Daly, 327; Cayuga County Nat. Bank v. 
 Daniels, 47 N. T. 631; Dows v. Greene, 24 N. T. 6.'58; Williams v. TUt, 39 N. Y. 319. 
 
 ' Mitchell V. Ostrom, 2 Hill, 520; .Jeremy on Car. 124. 
 
 « Hollister v. Bender, 1 Hill, 150. 
 
538 Law of Bailments. 
 
 satisfaction ; ' and when he does so, the burden of proof is upon 
 him to establish his allegation by a preponderance of evidence. The 
 same rule holds in relation to any new matter constituting a defense or 
 counterclaim, interposed by the defendant. The burden of proof rests 
 with the party making an allegation or asserting a faot.^ 
 
 It is a general rule of pleading, that a fact asserted on one side, and 
 not denied on the other, is to be taken as admitted ; and so the issue to 
 be tried by a jury consists of one or more facts affirmed on one side, 
 and denied on the other.'' In actions against common carriers, it is 
 necessary to prove, first, a contract express or implied ; second, the 
 delivery of the goods ; and tliird, the defendant's breach of promise or 
 duty.^ If the plaintiff counts on a special agreement, it must be 
 proved as laid, and no other will be implied.* And if the plaintiff bring 
 an action of tort, as for a conversion of the goods, he can only recover 
 on proving the cause of action alleged by him in his complaint.^ 
 
 § 669. The plaintiff usually relies upon an implied contract, proving 
 that the defendant is a common carrier, as alleged in the declaration, 
 and that the goods were delivered to him for carriage to the place 
 named, and that they have not in fact arrived." Having shown a state 
 of facts from which the law implies a contract on the ]Dart of the carrier 
 to carry and deliver the goods safely at their place of destination, slight 
 evidence is sufficient to cast the burden of proof upon him to answer 
 for the non-delivery. Evidence that the defendant's coachman, on 
 being inquired of for a parcel entrusted to him for carriage, replied that 
 he understood it had been lost, is sufficient in the first instance.' And 
 the testimony of the consignee's shopman, that he did not know of the 
 delivery, and believed that he must have known of it if a delivery had 
 taken place, is prima fucie evidence of non-delivery.' Though the bur- 
 den of proof is on the plaintiff to show that the property did not safely 
 
 1 McKyring v. Bull, 16 N. Y. 297; :1:5 N". T. 429; 5 Duer, .389; 21 Barb. 275; WTiite v. 
 Smith, 1 Lansing, 4ii9. 
 
 - Buswell V. Poineer, .37 N. T. 312; Greene v. Waggoneer, 2 Hilton, 297; Johnson 
 V. Plo-mnan, 49 Barb. 472; AVakemau v. Sherman, 9 X. Y. S5; Dimliam v. Pettee, 8 
 N. Y. 508; Heilman v. Lazarus, 90 N. Y. 072; Heinemann v. Heard, (i2 N. Y. 44S; 
 Roberts v. Chittenden, 8s X. Y. .3.3. 
 
 'Pvaymond v. "RTieeler, 9 Cowen, 295, 302; N. Y. Code of Civil Procedure; § 522; 
 2 Starkie Ev. § 282, 3d ed.; 2 Greenleaf s Ev. §§ 209, 213. 
 
 * Latham v. Rutley, 2 Barn. & Cress. 20. 
 
 6 Tolano v. National Steam Xav. Co., 5 Eobt. 318. 
 
 8 Tucker v. Cracklin, 2 Starkie C. 385. 
 
 ■^ Mayhew v. Nelson, 6 Carr. A- Payne R. .■j8; Morse v. Conn. River R., 6 Gray, 450. 
 Some evidence of non-delivery must be given before the carrier can be called upon to 
 prove delivery. Roberts v. Chittenden, 88 N. T. 33; The Falcon, 3 Blatchf. 64 
 
 8 Griffiths V. Lee, 1 Carr. & Payne R. 110. 
 
Common Careieks. 539- 
 
 reach its destination, it is not material how the fact is proved. Where 
 it was shown that the defendant's boat, in which the property was 
 stowed, had been capsized on the route and the property damaged, and 
 a portion of it carried to a place out of its course, it was ruled sufacient 
 to throw the burden of proof on the defendants to account for the 
 property.^ 
 
 Fpon proof of a delivery of goods to a common carrier for transporta- 
 tion, accompanied with evidence that they have not been delivered at 
 their place of destination after a reasonable time, the carrier is called 
 upon to account for the goods, and render a Jegal excuse for the non- 
 performance of his contract.^ For, from the moment he receives the 
 goods into his custody, everything is negligence in the carrier which 
 the law does not excuse.^ And where he has not limited his liability 
 by special contract, the law excuses him in only two instances ; namely, 
 where he is prevented from fulfilling his engagement by the act of God 
 or of public enemies.* 
 
 § 670. In respect to goods delivered to one who is not a common car- 
 rier, for conveyance from one place to another without hire, the pre- 
 sumptions are different ; and the bailee may excuse himself for a loss by 
 evidence of his own acts and declarations immediately before and after 
 the loss ; that is to say, these are to be received in evidence as a part of 
 the case, which the jury are at liberty to consider.^ Such declarations, 
 to become a part of the res gestm, must have been made at the time of 
 the act done, or directly after, and must have been so made as to qualify 
 and explain the act, and so harmonize with it as to constitute really 
 one transaction.^ 
 
 In an action against a bailee without hire, on an undertaking to carry 
 and deliver a sealed letter containing money, the plaintiff must prove a 
 loss of the package by the defendant's gross or culpable negligence, or 
 
 iBay etal. v. Eiddley et al., 16 Verm. R. 48. Non-delivery maybe proved in 
 various ways ; as by proving tbat tbe carrier did not bring the goods to the place of 
 delivery; Schroeder v. Hudson E. E. E. Co., 5 Duer, 55; or by proving that the 
 carrier failed on request to give any account of the goods ; Westcott v. Fargo, 6 Lans. 
 319; 63 Barb. 349; or by proof of his refusal to deliver; ISTewstadt v. Adams, 5 Duer, 
 43; ante, § 611. 
 
 2 Dale V. Hall, 1 Wils. 281. 
 
 5 Eich V. Kneeland, Hob. 18; Batson v. Donovan, 4 Barn. & Aid. 21; Mc Arthur v. 
 Sears, 21 "Wend. 190; Williams v. Grant, 1 Conn. 487. Proof of the delivery of goods 
 to the carrier in good order and that they were received from him in bad order is 
 sufficient to show negligence. Koenigsheim v. Hamburg Am. Packet Co., 12 Daly, 
 123. 
 
 * Jeremy on Car. 31, 32. 
 
 ^ Tompkins v. Saltmarsh, 14 Serg. & Eawie, 275. 
 
 « Bnos v. Tuttle, 3 Conn. E. 250; Moore v. Meacham, 10 N. T. 207. 
 
640 Law of Bailjiexts. 
 
 that he has broken the seal and appropriated the money to his own 
 use.i Having demanded the money or goods before bringing his suit, 
 the plamtiff may establish his cause of action by showing the cir- 
 cumstances, together with the defendant's failure to restore or to ac- 
 count for the money or property.'^ On proof of a total failure to deliver 
 the goods bailed, on demand, the onus of accounting for tin- default lies 
 with the bailee : it is otherwise where the cause of the loss appears in 
 evidence, and is consistent with reasonable diligence on the part of the 
 bailee. The presumptions are much stronger against the common car- 
 rier, who must account for the property, or show a loss of it from 
 causes for which he is not liable under his contract, or under the com- 
 mon law.^ 
 
 § 671. In actions against a common carrier, on a special acceptance 
 by him limiting his liability, the plaintiff must set forth the contract 
 accordingto its terms ; and his evidence must he priiiia facie sufficient 
 to establish the allegations in his complaint.^ He must prove an in- 
 jury to the goods or a loss of them, or a failure to deliver ; he must 
 support his complaint by evidence, which, being unexplained, raises the 
 presumption that the goods were lost or damaged by the carrier's 
 failure to fulfill his contract. It then rests with the carrier to show 
 that the injury or loss was caused without fault on his part; since 
 without evidence it cannot be presumed that the injury or loss is 
 covered by the exemption contained in the contract.^ 
 
 The plaintiff must prove, as well as allege, the facts which consti- 
 tute his cause of action ; but he cannot from the nature of things prove 
 a negative fact with the same certainty, or with the same species of 
 evidence with which he may establish an affirmative fact." And hence 
 the plaintiff may prove a loss of a package or parcel by the carrier's 
 negligence, by showing his failure to deliver it to the owner at the 
 place of destination. The presumption of a loss by negligence arises 
 
 ' Beardslee v. Eichardson, 11 Wend. R. 2.j. 
 
 2Willard V. Bridge, 4 Barb. 301, 307; 22 Barb. 314; or, Barb, iss, lii:;; 5 Duer, 43, 
 46; IE. D. Smith, 54; ante, §§ 59-02, 106, 1.5.5-150, 3l)!)-4n2. 
 
 8 Foote V. Storrs, 2 Barb. 320; 6 Lansing, 319; 03 Barb. 340; 4 i X. Y. 240; ante, § 
 611. See Fairfax v. N. Y. C. & H. E. E. Co., 07 X. Y. 11. 
 
 * Cochran V. Dinsmore, 49 IST. Y. 240; Lamb v. Camden ct Auil)oy E. E. Co., 46 
 N. Y. 271; Harris v. Paokwood, 3 Tamrt. 204; Marsh v. Home, 5 Barn. & Cress. 322; 
 Memphis & C. E. E. Co. v. Eeeves, 10 Wall. 120. 
 
 ^ Union Ex. Co. v. Graham, 20 Ohio St. 595; Simmons v. Law, 3 Keyes, 217; French 
 V. Buffalo, ]Sr. Y. & Erie E. E. Co., 4 Keyes, 108, 115; 30 X. Y. 630, 504; Whitworth 
 V. Erie Ey. Co., 87 X. Y. 413, 419; Witting v. St. Louis & San Francisco R. E. Co., 
 28 Mo. App. 103; Little Rock, etc., Ey. Co. v. Harper, 44 Ark. 208. 
 
 •5 1 Greenleaf's Ev. §§ 74-sl ; 2 id. § 213; The Falcon, 3 Blatchf. 64; Eoberts T. 
 Chittenden, 88 N. Y. 33, 35. 
 
Common Cakeiers. 541 
 
 from the fact of non-delivery ; ^ and a like presumption arises from the- 
 carrier's delivery of goods in a damaged condition, it being first proved 
 that he received them in good order ; ^ the same presumption arises 
 against the carrier where he fails to deliver the quantity received 
 by him.' The presumption is not so strong where a carrier delivers 
 a perishable article in an impaired or damaged condition ; and so he 
 may overcome it by showing that it was properly stowed and trans- 
 ported.* 
 
 When goods are carried over successive lines of connecting rail- 
 roads, and are delivered in a damaged condition, the owner establishes 
 prima facie a right to recover against the last carrier, by showing that- 
 the goods were delivered in a good condition to the first carrier, and 
 delivered by the last in an injured or damaged state.' The presump- 
 tion is based in part upon the policy of the law, considering how diffi- 
 cult it is for the owner to follow the goods along the extended line of 
 transportation and show by whose negligence the injury was caused ; 
 and in part upon this general rule, that things once proved to have ex- 
 isted in a particular state are to be presumed to continue in that state, 
 until the contrary is established by evidence, either direct or presump- 
 tive.'' 
 
 So the owner suing the first of several connecting lines establishes 
 a, prima facie right to recover, by showing the non-arrival of the goods 
 at the place of destination : this proof being sufficient to cast upon the 
 carrier the burden of showing what became of the goods.' 
 
 1 Burnell v. N. T. Central E. R. Co., 45 IT. T. 184, 189; Canfield v. Baltimore & 
 Ohio R. R. Co., 93 N". T. 532; Wheeler v. Ocean Steamship Nav. Co., 125 N. T. 155, 
 162. The delivery to the carrier must be first clearly proved. Woodbury v. Feink, 14 
 ni. 2'?9; McQuesten V. Sanford, 40 Maine, 117; ante, § 611. 
 
 2 Ellis V. Willard, 9 N. T. 529; Hastings v. Pepper, 11 Pick. 43, 106; Rich v. Lam- 
 bert, 12 How. U. S. 357; Clark v. Barnwell, 12 How. U. S. 280; Koenigsheim v. Ham- 
 burgh Am. Packet Co., 12 Daly, 123. 
 
 8 Hawkes v. Smith, 1 Carr. & M. 72; 9 N. Y. 529. The principle upon which the 
 rule is founded embraces the case of a partial as well as a total failure to deliver the 
 subject of the bailment. Canfield v. Baltimore & Ohio R. R. Co., 93 X. Y. 532, 538. 
 
 * Lambert V. Benner, 1 Sweeney, 665; Nelson v. Woodruff, 1 Black, 156; 12 How. 
 U. S. 272, 283. 
 
 6 Smith v. N. Y. Central R. E. Co., 43 Barb. 225; affirmed in Court of Appeals, 41 
 N. Y. 620; Wing v. N. Y. & Erie R. R. Co., 1 Hilton, 2.35; Laughlin v. Chicago, etc., 
 28 Wis. 204. 
 
 "Best on Presumptions, § 136; 4 Denio, 431; 9 Barb. 271; 22 Barb. 516; 58 N". Y. 
 475. See 37 N. Y. 162. It is presumed that the last of a line of carriers received 
 goods in the same condition in which they were delivered to the first in the line. 
 Shriver v. Sioux City, etc., R. E. Co., 24 Minn. 506. 
 
 ' Brintnall v. Saratoga R., 32 Vt. 665 ; Monell v. Northern Cent. R. E. Co., 67 Barb. 
 531. See Laws of 1892, Chap. 676, § 48. 
 
542 Law of Bailmei^ts. 
 
 What proof is sufficient to establish ■& prima fdcic case against a car- 
 rier, intermediate the first and last ? Proof of delivery to the first, be- 
 ing sufficient prima facia to charge him with having received the 
 goods, additional proof that he did not transfer the goods to the suc- 
 ceeding carrier must be sufficient to cast upon him the onus of ac- 
 counting for them.^ Having been once charged with the custody of 
 the goods as a carrier, he remains presumptively liable for them until 
 he passes them over to the next carrier or to the owner.^ 
 
 § G7:i. When a carrier makes a special contract, exempting himself 
 from certain specific dangers or risks, and fails to deliver the goods, it 
 rests with him to show that the loss arose from the specified dangers or 
 risks. He must bring himself witliin the exception.' If he engages to 
 carry and deliver goods safely, unless prevented by the perils of the 
 sea, the lake or river, and does not deliver the goods, it is incumbent 
 upon him to show that he was prevented from delivering them by such 
 perils ; * proof of non-delivery, or of loss or damage unexplained by the 
 circumstances, being sufficient to throw upon the carrier the burden of 
 accounting- for the goods.^ 
 
 The law Mill not presume a party guilty of culpable neglect of a 
 legal duty.' Hence the plaintiff, alleging a loss of his goods by the 
 defendant's negligence, must as a general rule prove his allegation; he 
 must support his complaint by evidence sufficient to uphold a verdict 
 against the defendant. The defendant must then show a loss within 
 the exceptions contained in the contract ; and the plaintiff may then 
 take up the case and show that the defendant's negligence under the 
 circumstances actually caused or permitted the loss. This apparent 
 shifting of the burden of proof occurs daily in the trial of this class of 
 
 1 See Mills v. Michigan Central E. Co., 4.5 N. T. (122; McDonald v. Western E. Cor., 
 34 N". T. 4n7; 43 Barb. 22.-.. In Lee v. Bernheinier, 6 J. & S. 40, it is held that no 
 presumption of the arrival of goods arises from their shipment. 
 
 2 Gould V. Chapin, 20 N". T. 2.59. 
 
 3 Woodworth v. McBride, 3 Wend. 22"; 4 B. A- C. 440; 4 Campb. 20; Ayman t. 
 Astor, 6 Cowen, 2l!(>; ante, § .".SI, and note. 
 
 * Transportation Co. v. Downer, 11 Wallace, 129; Clark v. Barnwell, 12 How. U. S. 
 272; ante, §§ •■|S.5-.587, and note to § .5S7. 
 
 ^ Eiley v. Home, 5 Bing. 217; Home Ins. Co. v. Western Trans^j. Co., .51 N. T. 93; 
 King V. Shepard, 3 Story C. C. E. 349; Canfield v. Baltimore & Ohio E. E. Co., 93 
 N. Y. 532; Wlieeler v. Ocean Steamship Xav. Co., 12.5 N. T. 155, 162; Stewart v. 
 Stone, 127 X T. 500, 506. 
 
 6 Hartwell v. Eoot, 19 John. E. 345; Munn v. Baker, 2 Stark. E. 255. 
 
 ' Westcott V. Fargo, 6 Lans. 319; The J. Eussell M. Co. v. X. H. S. Co., 51 X. T. 
 21; Graham V. Davis, 4 Ohio St. 362; Cleveland E. E. v. Curran, 19 Ohio St. 1, 221; 
 Knowlton V. Erie E. E., 19 Ohio St. 260; Stein weg -i . Erie Eailway, 43 N. T. 123; 
 
Common Carkiers. 543 
 
 The fact of negligence is ordinarily to be found by the jury, from 
 the evidence and the attending circumstances. It is for the jury to 
 pass upon conflicting evidence, and find the fact from the testimony 
 before them ; ^ as they may in many cases from the nature of the 
 accident, or from the conduct and relation oi the parties, when the loss 
 occurred.^ " If a thing is shown to be under the management of the 
 defendant or his servants, and the accident is such as in the ordinary 
 course does not happen if those who have the management use proper 
 care, it affords reasonable evidence, in the absence of explanation by 
 the defendant, that the accident arose from the want of proper care." ^ 
 
 § 673. Damages. The amount of damages to be recovered in an 
 action against the carrier depends upon the extent of his liabiUty and 
 the nature of the loss or injury sustained.^ On a total loss, where 
 there is no special contract limiting his liability, the value of the goods 
 at the place of destination, deducting freight, is the measure of damages ; 
 and, if the goods be not totally lost, the owner recovers damages equiv- 
 alent to the injury sustained.^ In an action on a bill of lading, for not 
 delivering goods, stated to have been lost or embezzled during the 
 voyage, without fraud on the part of the defendant, it was held that 
 the master must answer for the value of the goods missing, according 
 to the clear net value of goods of like kind and quality at the port of 
 delivery ; ^ and he may also be held to pay interest on the value of the 
 
 Condict V. Grand Trunk R. Co., 54 K. T. 500, 505, citing Lamb v. Camden <fe Amboy 
 R. R. & T. Co., 46 N. Y. 271, which turned on the question as to the burden of 
 evidence to show the fact of a negligent loss by fire. See Rawson v. Holland, 59 N. T. 
 611; Steers v. Liverpool, N". Y. & Phila. S. Co., 57 N". Y. 1; 56 N. Y. 194; 54 N. Y. 
 197; 45 iSr. Y. 514; 12 How. U. S. 272; Home Ins. Co. v. Western Transp. Co., 51 
 N. Y. 93, 96; 51 N. Y. 369, 497; 50 N. Y. 661; Viner v. N. Y., etc., Steamship Co., 
 50 N". Y. 23, 53; 49 N. Y. 442; Cochran v. Dinsmore, 49 N. Y. 249; Zinn v. New 
 Jersey S. Co., 49 N. Y. 442; 48 N. Y. 209; 47 N. Y. 282, 525; 45 N. Y. 184, 514; 44 
 N. Y. 94; 44N". Y. 263; Guillaume v. Hamburgh & Am. Packet Co., 42 N. Y. 212; 
 Heilmau v. Lazarus, 90 N. Y. 672; Heinemann v. Heard, 62 N. Y. 45.J; Stewart v. 
 Stone, 127 N. Y. 500; Blunt v. Barrett, 124 N. Y. 117. 
 
 1 Ireland v. O., H. & S. Plank Road Co., 13 N. Y. 526, 533; Ernst v. Hudson 
 River E. Co., 3-5 X. Y. 9. 
 
 2 The J. Russell M. Co. v. N. H. S. Co., 50 K Y. 121; Curtis v. R. & S. R. R. Co., 
 IS N, Y. 534, 544. 
 
 8 Scott v. London, etc., Dock Co. , 3 Hurlst. & Colt. 596 ; 13 Peters, IRl ; Holbrook v. 
 Utica & Schenectady R. R. Co., 12 N. Y. 236; Breen v. N. Y. C. & H. R. E. E. Co., 
 109 N. Y. 297. 
 
 * Jeremy on Carriers, 132; Ludwig v. Meyre, 5 Watts & Serg. 435; Hand v. Baynes, 
 4 Whart. 204. 
 
 ^Brackett v. McNair, 14 John. R. 170; Wallace v. Vigus, 4 Blackf. (Ind.) 260; 
 McGregor v. Elgore, 6 Ohio E. 143 ; ante, § 610. 
 
 « Watkinson v. Laughton, 8 John. R. 213; Sturgess v. Bissell, 46 N. Y. 462. 
 
644 Law of Bailments. 
 
 goods from the time he ought to have dehvered them ; interest being- 
 the reasonable measure of damages for the detention of the ascertained 
 amount, to be allowed or not, according to the earlier decisions, in the 
 discretion of the jury.^ Upon principle, the owner is now considered 
 entitled to interest on the damages from the time he sustained the 
 injury.^ The damages recoyerable against a carrier are such as result 
 naturally from his failure to fulfill his contract. If the property be 
 wholly lost in the transit, by such failure, the owner is entitled to 
 recover its value at the place of destination named in the contract ; and 
 the carrier is entitled to have the freight deducted from the value, not 
 because he has earned it, but on the ground that the stipulated freight 
 represents the cost of placing the goods in that market ; so that the 
 value of the property in that market, deducting the freight, will exactly 
 indemnify the owner^ — the value to be ascertained according to the 
 market rates, giving to the owner what he might have received for the 
 property on a sale or other disposition of it.* 
 
 The same rule applies where a railroad contracts to carry and deliver 
 goods to a point beyond the termination of its line. There being no 
 such contract, the damages are to be assessed at the market price at the 
 terminus of the road.^ 
 
 § 674. When the carrier without any legal excuse delivers the goods 
 in a damaged condition, the owner recovers as damages the difference 
 between the value of the goods delivered in proper order or in the con- 
 dition in which the carrier received and undertook to deliver them, and 
 their value in their damaged condition as delivered." The owner loses 
 
 1 Richmond v. Bronson, 5 Denio, .5.5 ; 45 Barb. 40. 
 
 - Sherman v. AVells, 2S Barb. 4u:3; Sedgwick on Damages, 424, 6tli ed. See Lake- 
 man V. Grinnell, ^j Bosw. 025, where the loss occurred before the vessel sailed; 
 Krohn v. Oeclis, 48 Barb. 127. 
 
 8 Sturgess \. Bissell, 46 N". Y. 462; Spring v. Haskell, 4 Allen, 112; Laurent v. 
 Vaughan, 30 Vt. 00; ;57 Barb. 122; Eice v. Ontario Steamboat Co., .56 Barb. 584; 
 Bridgman v. Steamboat Emily, IS Iowa, 509. See The Xith, 36 Fed. Rep. SO; 
 Mobile, etc., E. R. Co. v. Jm-ey, 111 U. S. 584. 
 
 4 Smith V. Griffiths, 3 Hill, 33:1; Cushing v. Wells, Fargo & Co., OS Mass. 550. 
 
 ° Perkins v. Portland, S. & P. R. R. Co., 47 Maine, 57-3; Marshall v. N. T. Central 
 R. Co., 45 Barb. 502. The value at the place of loss has been allowed. Harris v. 
 Panama R. Co., 3 Bosw. 7; S. C. 5 Bosw. 312; 3 Story, .349. 
 
 ^ Henderson v. Ship Maid of Orleans, 12 La. Ann. 352 ; Black v. Camden & Amboy 
 R. * Transp. Co., 45 Barb. 40; Hell v. St, Louis, etc., Ry. Co., 16 Mo. App. 363; 
 Estill v. N. T., L. E. & W. R. E. Co., 41 Fed. Eep. 849. The fact that the owner of 
 the goods has paid the freight or has submitted to a judgment therefor will not pre- 
 clude him from recovering damages for injuries to the goods while en route. He may 
 pay the freight and sue for damages, or set up his damages by way of counterclaim ia 
 an action to recover the freight, or he may bring a cross action. Schwinger v. Ray- 
 mond, 83 N. T. 192. 
 
Common Carelees. 545 
 
 by the injury to the goods, the difference between what they are worth 
 as delivered, and what they would have been worth, delivered in a good 
 condition. And in estimating or measuring the damages, the rule is to 
 ascertain the value of the goods in the condition in which they were de- 
 livered to the carrier, and the value of them in their damaged condition 
 when received by the consignee ; the difference between these amounts 
 is the true measure of damages.* The owner recovers that sum, which, 
 added to the value of the injured article, is equal to that article in a 
 sound condition. 
 
 § 675. An element of policy appears in the earlier decisions, requiring 
 the carrier to make good the loss of missing goods, or any damage ac- 
 cruing to the goods delivered while in his hands. The rule as applied 
 to the ship-carrier is deemed salutary, because in furtherance of the 
 general policy of the marine law, which holds the master responsible as 
 a common carrier for accidents, and all causes of loss, not coming with- 
 in the exception in the bill of lading ; and because it takes away all 
 temptation to withhold a delivery of the goods, and exempts the shipper 
 from the hard task of undertaking to detect, in every case, the negligence, 
 fault or fraud of the carrier ; and it must be admitted that the rule is 
 highly just and necessary when a loss is imputable to either of these 
 causes.'* 
 
 It is of course wise to adopt a rule of damages with some view to its 
 effect upen the conduct of the parties ; and we find that this is actually 
 done, with reference to different classes of contracts ; instance, contracts 
 for personal services, and charter-parties where the charterer fails to 
 lade a vessel pursuant to the contract.' The law for wise reasons also 
 imposes upon the party subjected to injury from a breach of contract 
 the active duty of making reasonable exertions to render the injury as 
 light as possible. Public interest and sound morality accord with the 
 law in demanding this ; and when the injured party, through negligence 
 or willfulness, allows the damages to be unnecessarily enhanced, the 
 increased loss justly falls upon him.^ 
 
 § 676. On a breach of an executory contract to carry and deliver a 
 cargo of grain, the hirer is entitled to recover as his damages the differ- 
 
 * McHenry v. Kailroad Co., 4 Haring R. 448. 
 
 2 Gillingham V. Dempsey, 12 Serg.& Kawle, 188; Brandt v. Bowlby, 2 Barn.& Adolph. 
 932; Warden y. Greer, 6 "Watts, 424; C Conner v. Foster, 10 Watts, 418. 
 
 « Heckseher v. McCree, 24 Wend. 304; Shannon v. Comstock, 21 Wend. 457; Ash- 
 burner V. Balchen, 7 :S. Y. 262. 
 
 * Hamilton v. McPherson, 28 N. T. 72; Clark v. Marslglia, 1 Denio, 317; Spencer 
 V. Halstead, 1 Denio, 606; Loker v. Dorman, 17 Pick. 284; Miller v. Mariners' 
 Church, 7 Greenleaf, 51. 
 
 35 
 
54(j Law op Bailments. 
 
 ence between the contract price and the market rate of freight, ruling at 
 the time the ship should have sailed.* Being able to find another con- 
 veyance, the owner's legal damages are limited to the increased expense 
 of sending forward his goods.'' Being unable to fuid another convey- 
 ance, the hirer is entitled to recover the difference between the value of 
 his goods at the port of shipment and their value at the port of destina- 
 tion, deducting freight ; = or the additional cost of the transportation, 
 where he is able to send the goods by an unusual and more expensive 
 conveyance.* 
 
 When the goods are lost by accident at or near the port of lading, 
 without any actual negligence on the part of the carrier, the owner 
 recovers the value of the goods at that port ; on the ground, that this 
 value will ordinarily indemnify him against loss, enabling him to re- 
 place the goods and send them forward by another vessel.^ The car- 
 rier's negligence, or fraud, or fair dealing, bears on the measure of dam- 
 ages ; and yet the test question appears to be this, whether the market 
 price at home or the price at the port of destination will under the 
 circumstances furnish a true and perfect indemnity.'' 
 
 § 677. When the owner brmgs an action of trover against a common 
 carrier, he recovers the value of the property with interest thereon from 
 the time of the conversion, or from a reasonable time thereafter. This 
 appears to be the general rule, where no circumstances of bad faith or 
 willful misconduct accompany the act; '' and the rule is the more rea- 
 sonable because an act of conversion does not affect the title to the 
 property.^ 
 
 We have seen that the carrier is also liable for the damages caused 
 by his delay in transporting and delivering the goods pursuant to his 
 contract ; and that the general rule is to allow the owner to recover 
 such damages as will indemnify him against the direct and natural con- 
 sequences of the carrier's inexcusable delay .^ 
 
 1 Ogden V. Marshall, 8 X. Y. 340. 2 Grand v. Pendergast, 58 Barb. 216. 
 
 8 Brackett v. JlcXair, 14 John. E. 170; 15 John. E. 24; 3 Caines' E. 219; 8 John. 
 R. 21.0; Cowen, 263; C)' Conner v. Foster, 10 "Watts, 418; McGovem v. Lewis, 56 
 Penn. St. 231; Fox v. Hayward, 4 Brewster, 32. 
 
 < Cooper V. Young, 22 Geo. 269. 
 
 5 Wheelwright v. Beers, 2 Hall, S. C. R. 391; Lakeman v. Grinnell, 5 Bosw. 625; 
 Dresar v. Murgatoyd, 1 Wash. C. R. R. 13; Bridge v. Austin, 4 Mass. 115. 
 
 * Lakeman v. Griunell, supra, and cases there cited. 
 
 ' Ante, §§ 112, 270, 406, 407; Wlielan v. Lynch, 60 N. T. 469: Andrews v. Durant, 
 18 N. Y. 496. • 
 
 ' Ball V. Liney, 48 N. Y. 6. 
 
 9 Ante, §§ 608-611; Wilson v. Lancashire & Yorkshire R. Co., 9 Com. B. (X. S.) 
 032; CoUard v. South Eastern E. Co., 7 H. & N. 79. 
 
Common Caeeiers. 547 
 
 XI. Caeeiage of Lite Stock. 
 
 § 678. Since the introduction of railways, the transportation of 
 horses, cattle and other live stock has grown up into an important 
 branch of business. The English railways were not at first obliged to 
 assume the character and liabilities of common carriers ; and independ- 
 ent of any statute they can hardly be charged with the common law 
 liability of common carriers of live stock, where they have not assumed 
 the character by their mode of transacting the business.^ Assuming to 
 carry all kinds of freight, including live stock, indiscriminately for all 
 persons, they are thus chargeable ; with certain qualifications arising 
 out of the peculiar nature of the property.^ Having the right to 
 assume the character or not, at pleasure, it is under the common law 
 within their power to limit their business to the transportation of a 
 specific kind of goods, or so as to exclude a specific kind." 
 
 The statute of England, already noticed, makes it the duty of rail- 
 way and canal companies to afford all reasonable facilities for receiving, 
 forwarding and delivering traffic upon their several lines of transporta- 
 tion, including goods, animals and other articles.* It also renders the 
 company liable for the loss of, or for any injury done to, any horses, 
 cattle or other animals, or to any articles, goods or things, in the receiv- 
 ing, forwarding or delivering thereof, occasioned by the neglect or de- 
 fault of such company or its servants ; permitting the company to pre- 
 scribe just and reasonable terms or conditions ; and fixing the damages 
 to be paid at so much per head, on a loss of such animals, unless valued 
 on delivery to the company at a higher sum ; and further providing 
 that special contracts for such transportation must be made in writing. 
 
 In this State railroad corporations are, by an act of the Legislature, 
 made common carriers, with such variations as the nature of the busi- 
 ness requires. They are required to receive and carry all kinds of 
 property ; receiving and discharging the same, at fixed times and places, 
 duly advertised beforehand.* Being thus made common carriers, rail- 
 roads have no right to prescribe the conditions on which alone they will 
 receive goods for transportation ; but where they actually receive them 
 
 iMcManus v. Lancashire & Yorkshire R. Co., 2 H. & N. 693; 4 Jur. IST. S. 144; 27 
 L. J. Exch. 201; 4 H. & N. 346; Kimball v. Rutland Co., 26 Vt. 247; Michigan S. R. 
 Co. V. McDonough, 21 Mich. 189. 
 
 2 Parker v. Great Western E., 7 Man. & G. 253; Muschamp v. Lancaster R., 8 Mees. 
 & Welsh. 421; Palmer v. Grand Junction E. Co., 4 M. <fe W. 749; 12 M. & W. 766; 
 Weed V. S. & S. R. Co., 19 Wend. 534; ante, § 515; Penn. v. Buffalo & Erie R. R., 49 
 X. T. 204. 
 
 « Sewell V. Allen, 6 Wend. 335; Blanchard v. Isaacs, 3 Barb. 388. 
 
 « Railway and Canal Traffic Act 1854, 17 and 18 Vict. c. 31, § 2. 
 
 5 Laws of 1892, Chap. 676, § 34. 
 
548 Law of Bailments. 
 
 under a special agreement for carriage, their liabilities will, with few 
 exceptions, be regulated by the terms used. 
 
 § 079. Excluding causes of loss or injury arising from the projDer 
 vice or peculiarities of live stock, we find railways and transportation 
 companies treated as common carriers of this species of property, and 
 held liable as such for injury or loss arising from other causes not 
 coming within the exceptions to the general rule. Receiving live stock to 
 carry under the contract implied by law, or without any special stipu- 
 lations, they are common carriers, with such qualifications of their 
 liability as the law itself supplies.^ They are bound to take suitable 
 care of the property, considering its nature, on the way and at the place 
 of destination.^ They are bound to furnish secure and safe and proper 
 cars or conveyances, and run them with diligence and regularity, halt- 
 ing at convenient times and places, so as to permit the cattle to 
 be properly watered and fed and cared for.^ The duty of a railway 
 company to furnish sound and sufficient cars, properly constructed, is 
 strictly enforced ; the company cannot escape this obligation by calling 
 attention to the defective condition of the cars, at the time the cattle 
 are received on board ; they can only escape liability for losses arising 
 therefrom by proof of a distinct agreement by the owner to assume the 
 risk arising from that cause.* And it has been held that they cannot 
 make a valid contract, exempting themselves from liability for damages 
 resulting from defective and unsafe cars supplied by them.^ 
 
 § 680. There is some tendency in the decisions to relieve our railroad 
 
 1 Palmer v. Grand Junction Co., 4 M. & W. 758; Kimball v. Eutland Co., 20 Vt. 
 247; Merritt v. Earle, 29 X. Y. Ho; assumed in Railroad Co. v. Pratt, 22 Wall. 123; 
 Wyld V. Pickford, 8 JI. & W. 443; Kansas Pacific R. Co. v. Xichols, 9 Kansas, 235; 
 Louisville & N. R. R. Co. v. Wynn, 88 Tenn. 320; Missouri Pacific R. R. Co. v. Corn- 
 wall, 70 Texas, 611; Gulf, C. i- S. F. R. R. Co. v. Ellison, 70 Texas, 491; Mynard v. 
 Syracuse, etc., P.. R. Co., 71 X. T. 180; Bamberg >-. South Car. R. R. Co., 9 S. C. 
 01; McCoy V. K. D. & M. R. R. Co., 44 Iowa, 424. 
 
 - Great Northern R. Co. w. SwafBeld, 8 English (Moak), 507, citing Notara v. Hen- 
 derson, 1 English (Moak), 200. 
 
 8 Squire v. N. T. Central R., 98 Mass. 230; 111. Central R. R. Co. v. Adams, 42 111. 
 474; Gregory v. West. M. R. Co., 2 H. & C. 944; Wabash, St. Louis, etc., R. R. Co. 
 V. Pratt, 15 111. App. 177. See U. S. Rev. St. § 4380, in respect to keeping cattle upon 
 cars for more than twenty-eight consecutive hours without unloading; and Missouri 
 P. R. R. Co. V. Ivy, 79 Texas, 444. See also, Bills v. N. T. C. R. R. Co., 84 N. Y. 5; 
 and see N. Y. Penal Code, § 003. 
 
 < Pratt V. Ogdensburgh & Lake Champlain R. Co., 102 Mass. 557; Railroad Co. v. 
 Pratt, 22 Wallace, 123; 14 N. T. 570; 111 Mass. 142; Harris v. Northern Ind. R. Co., 
 20 N. T. 232; Combe v. London & Southwestern R. Co., 31 L. T. N. S. 618; St. 
 Louis & S. R. Co. V. Dorman, 72 111. 504. 
 
 6 Welsh V. Pittsburgh, Ft. W. & C. R. R. Co., 10 Ohio St. 05. 
 
Co]^rao^r Cahriers. 549 
 
 •companies of their liability as common carriers, in the transportation 
 of live stock.^ And it is quite clear that the law does not hold them lia- 
 ble for the safe transportation of horses and cattle under the same strict 
 rule which applies to goods and merchandise, inanimate property. The 
 business is of recent origin ; and the carrier has not the same control 
 over animals as he may have over inanimate matter.^ He can store 
 away goods so as to secure their safety. But a carrier of animals, by a 
 mode of conveyance opposed to their habits and instincts, has no such 
 means of securing absolute safety. They may die of fright, or by re- 
 fusing to eat, or they may, notwithstanding every precaution, destroy 
 themselves in attempting to break away from the fastenings by which 
 they are secured, or they may kill each other by crowding, plunging or 
 goring ; the motion of the cars, their frequent concussions, the scream 
 of the engine, often create a kind of frenzy in the swaying mass of 
 cattle ; and the carrier is not held liable for injuries or losses arising 
 from the irrepressible instincts of this living freight, which he could 
 not prevent by the exercise of diligence and care.' Using all due and 
 reasonable care, he is not liable for the loss of an animal that escapes 
 by its own efforts from the cattle-car and is killed ; ^ or for the loss of 
 an animal killed on a vessel in a storm at sea, by straining, caused by 
 the roll or motion of the ship ; ^ or for an injury inflicted by one horse 
 npon its mate, in transit on a railway, where the injury results from 
 the peculiar character and propensities of the horse, such as fright or 
 bad temper ; or for injuries resulting from the owner's fault in fastening 
 the animal, or in omitting to remove his shoes ; ^ or for any injury re- 
 sulting from the proper vice of the animal.'' If the animal, a horse for 
 
 1 Michigan So. & Northern Ind. R. Co. v. McDonough, 21 Mich. 165; Lake Shore 
 & M. So. R. Co. V. Perkins, 25 Mich. 329; S. C. 12 Amer. R. 2*75; McManus v. Lan- 
 cashire R. Co., 2 Hurl. & Norman, 702; S. C. 4 Hurl. & Norman, 346; Carr v. Lanca- 
 shire & Y. E. Co., 7 Exch. 712, 713. 
 
 2 See Boyce v. Anderson, 2 Peters, 150, where a like exception was made in favor 
 of a carrier of slaves that leaped from a steamboat in a panic. 
 
 3 Clarke v. Rochester & Syracuse R. Co., 14 N. T. 570; 21 Mich. 165, 189; Louis- 
 ville, N. O. & T. R. R. Co. v. Bigger, 66 Miss. 319; Black v. Chicago, B. & Q. R. E. 
 Co., 1 Neb. L. J. 30; Boehl v. Chicago, M. & St. P. E. R. Co., 44 Minn. 191; Penn 
 V. Buffalo & Erie R. R. Co., 49 N. T. 204; Mynard v. Syracuse, etc., R. R. Co., 71 
 N. T. 180; Holsapple v. R., "W. & O. R. R. Co., 86 N. T. 275. 
 
 * Great Western R. Co. v. Blower, 2 English (Moak), 700. 
 
 6 Nugent V. Smith, 1 L. E. C. P. Div. 423; 45 L. J. C. P. Div. 697; 84 L. T. N. S. 
 827; 25 W. E. 117 C. A. Case of a horse carried by the sea from London to Aberdeen, 
 and killed by fright and consequent struggling. 
 
 6 Evans v. Fitchburg R. Co., Ill Mass. 142; Richardson v. N. E. E. E., 7 C. P. 75; 
 14 N. T. 570. 
 
 ' Smith V. New Haven R. Co., 12 Allen (Mass.), 531. 
 
550 Law op Bailments. 
 
 example, be placed in a car and secured in the usual manner, and found 
 injured at the place of destination, the carrier is not liable unless it be 
 found from the nature of the injury, or from some accident on the 
 journey, or from some defect in the conveyance, that the damage resulted 
 from his negligence.^ 
 
 § CSI. The carrier of live stock must exercise reasonable diligence in 
 the business, and he must complete the journey within a reasonable 
 time.^ He is liable as a common carrier for the construction and equip- 
 ment of his road, for the running of his trains, and generally, except so 
 far as his responsibility is modified by contract or by the inherent vice 
 of the freight itself." 
 
 There is some imperfection in this mode of stating the liability of a 
 carrier of live stock ; since it calls for a careful definition of his duty to 
 guard against losses likely to arise from the nature of different animals, 
 confined in trucks, cars or vessels, on the route of transportation : a 
 duty which requires him to use foresight, vigilance and care to prevent 
 injuries from the nature or conduct of the animals, such careful precau- 
 tions and diligence as may be reasonably expected from a man engaged 
 in the business.* He is not an insurer against injuries arising from the 
 nature and propensities of the live stock carried by him ; and his liabil- 
 ity is not limited to a careful and safe conveyance of the car containing 
 them. He must provide in advance suitable and proper means to in- 
 sure the safe conveyance of the property ; and he must use these means 
 with all reasonable diligence and forethought, m the varying circum- 
 stances and exigencies arising in the business.^ 
 
 1 Kendall v. London & Southwestern E. Co., 2 Englisli (Moak), 700; Clarke v. 
 Rochester & Syracuse E. Co., 14 N. Y. 570. The circumstances of these cases are 
 very much alike; the causes of the injury being a matter of inference from the nature 
 of the injury and the apparent manner of it. 
 
 2 Harris v. Northern Ind. E. Co., 20 N. T. 232; Conger v. Hudson Eiver E. R. Co., 
 6 Duer, 375; German v. Chicago & N. K. Co., 38 Iowa, 1:17. 
 
 8 Wilson V. Hamilton, 4 Ohio St. 722; Great Western 1!. Co. v. Hawkins, 18 Mich. 
 427; Kansas Pacific R. Co. v. Nichols, 12 Amer. R. 494, note 500; S. C. 9 Kansas, 
 2.35; Kimball v. Rutland R. Co., 26 Vt. 427; 14 N. Y. 570; 20 N. Y. 2,32; 10 Ohio 
 St. 65. 
 
 * Clarke v. Rochester & Syracuse E. Co., 14 N. Y. 570; Nugent v. Smith, supra. 
 
 ^ Besides providing safe and properly constructed vehicles or conveyances, a railway 
 carrier of live stock must provide convenient stations or stopping places along the 
 road, where the cattle may be fed ; and it must provide a proper supply of water for 
 the use of the stock; and in carrying live hogs in warm weather, it is the carrier's 
 duty to provide and to apply water to them, to prevent them from being suffocated or 
 overheated. It is also bound to start its trains loaded with cattle promptly; and, 
 unless prevented by some excusing cause, it is bound to arrive on time, or pay the 
 damages caused by its delay. Toledo, "Wabash & W. E. Co. v. Thompson, 71 111. 434j 
 
Common Caekiers. 551 
 
 § 682. Under the English decisions prior to the statute of 1854, the 
 carriage of live stock by the railways was regulated by contract ; the 
 companies receiving these chattels under a special agreement, by the 
 terms of which the owners or their servants accompanied the trains, 
 taking care of and feeding the cattle during the journey. And in some 
 instances the charge for freight was made expressly for the use of the 
 railway carriages and locomotive power only, with an express stipula- 
 tion that the company would not be responsible for any alleged defects 
 in the carriages used, unless complaint was made at the time of book- 
 ing ; nor for any damages, however caused, in the journey of transporta- 
 tion. 
 
 The railway companies were not at first declared common carriers ; 
 and they were regarded or treated as common carriers only so far as they 
 voluntarily became such. Refusing to accept the character in the 
 transportation of live stock, they were held liable as bailees, under and 
 according to the terms of the contract, in each case. In this manner 
 they were able to escape all liability in the conveyance of live stock, not 
 involving willful misconduct or misfeasance on their part.^ 
 
 Since the passage of the act of 1854 the English railways are only 
 allowed to impose reasonable conditions. They cannot relieve them- 
 
 Toledo, Wabash & W. E. Co. v. Hamilton, 11 III. 393; St. Louis & S. E. Co. v. Dor- 
 man, 72 111. 504; 111. Central E. Co. v. Waters, 41 111. 73; 111. Central Co. v. Owens, 
 53 111. 391; Cragin v. N. Y. Cent. E. Co., 51 N. T. 61; 49 I^. Y. 204, 263; Harris v. 
 Northern Ind. E. Co., 20 N. T. 232; Nugent v. Smith, cited above, under § 680; Gulf, 
 C. & S. F. E. E. Co. V. McCorquodale, 71 Texas, 41; Gulf, Of & S. P. E. E. Co. v. 
 Ellison, 70 Texas, 491. 
 
 1 Decision prior to 17 and 18 Vict. c. 31. The contract prior to the statute created 
 a special relation, and was allowed to relieve the carrier according to its terms, even 
 from an injury caused by a collision; Great Northern E. Co. v. Morville, 7 Eng. 
 Eailw. Cas. 830 ; 10 Eng. Law & Eq. 366 ; and from all risks of the conveyance what- 
 soever; Shaw V. York & North M. E. Co., 6 Eng. Eailw. Cas. 87; 13 Q. B. 347. The 
 owner of the animals was obliged to bring his action upon the actual contract, and 
 could only recover on showing a breach thereof. Austin v. Manchester, S. & L. E. 
 Co., 16 Q. B. 600; 15 .Tur. 670; 5 Eng. Law & Eq. 329; Carr v. Lancashire & Y. E. 
 Co., 7 Exch. 707; 7 Eng. Eailw. Cas. 426; 17 Jur. 397; 14 Eng. L. & Eq. 340; Chip- 
 pendale V. L. & Y. E. Co., 17 Eng. L. & Eq. 399. A railway company letting trucks 
 for hire for the conveyance of horses, delivered to the owner of tlie horses a ticket in 
 which it was stated that the owners were to undertake all risks of injury by convey- 
 ance and other contingencies, and further stipulated that the company would not be 
 liable for any damages, however caused, to horses or cattle; held that the owner of 
 the horses could not recover for damage done to them through the breaking of an 
 • axle, attributable to the culpable negligence of the company's servants. Austin v. 
 Manchester, Sheffield & L. E. Co., 10 C. B. 454; Eailw. Cas. 300, A. D. 1850. The 
 contract was enforced as made. Walker v. York & North M. E. Co., 2 El. & Bl. 750, 
 A. D. 1858. Same principle affirmed in Canada. Dodson v. Grand Trunk E. Co., 7 
 Canada, L. J. N. S. 263. 
 
652 Law of Bailments. 
 
 selves from all liability for injuries in the transit ; ^ and it is adjudged 
 that a condition whereby a railway company disavows liability for 
 any injury to cattle carried by them, in consequence of over-carriage, 
 detention or delay, is unreasonable, though the charge for transporta- 
 tion be reduced below the usual rate.^ The common law does not allow 
 a party to shield himself by a dishonest contract ; and this statute does 
 not permit a railway company to protect itself by an unreasonable atif/ti- 
 lation, ; and it restricts even a reasonable stipulation to its fair scope 
 and operation.'* 
 
 § 683. As we have no statute in this country limiting or c[ualifying 
 the freedom of parties to make such contracts as they deem proper, our 
 railroad companies are left free to make such contracts for the convey- 
 ance of live stock as the common law will enforce. They cannot, beiny 
 common carriers, impose their own terms ; and they cannot, according 
 to a well defined Une of authorities, stipulate for exemption from liabil- 
 ity for the negligence of themselves or their servants — an inability 
 which assumes that the principle of the English statute exists in the 
 common law itself.* ATitli this qualification, or without it according to 
 the English decisions followed by many of our States, our railroad 
 carriers are at liberty to, and do practically carry on the business of 
 conveying live stock under special agreements prescribing their liabil- 
 ities ; so thatjn some cases the contract covers the entire transaction, 
 and furnishes the measure of the carrier's liability ; and in some casc'^ 
 relieves him of certain specified risks, and leaves him liable under an 
 implied contract f^r others. 
 
 We have then, first, a difference in principle to deal with ; some of 
 our States holding with the United States Supreme Court, that a com- 
 
 1 Gregory v. West. M. R. Co., 2 H. & C. 044; Lloyd v. AVaterford & L. E. Co., L". 
 Ir. C. L. E. 37; 9 L. T. X. S. S!) Q. B. 
 
 2 Allday v. Great Western E. Co., 5 B. tt S. 903. 
 
 'A contract for tlie carriage of a cow contained tliis stipulation: "The Great 
 Nortlieril Eailway Company gives notice that they convey horses, cattle, sheep, pigs, 
 and other live stock in wagons subject to the following condition: that they will not 
 be responsible for any loss or injury to any horse, cattle, sheep or other animal, in 
 the receiving, forwarding or delivering, if such damage be occasioned by the kicking, 
 plunging or rcstivoness of the animal ;" and it was held tliat tlie stipulation did not 
 relieve the company for the negligence of its servants in taking the animal out of the 
 truck at the place of destination, where the creature was killed partly through its 
 fright or restiveness. Gill \'. Manchester, ,S. & L. E. Co., \i L. .J. Q. B. 89; 8 L. E. 
 Q. B. 186. 
 
 1 Welch V. Boston & Albany E. E. Co., 41 Ct. :):3:5; Welch v. Pittsburgh, Ft. W. & 
 C. E. E, Co., 10 Ohio St. (;."i; Farnham v. Camden & Amboy E. E. Co., 1.') Penn. St. 
 5:3; Colton v. Cleveland & Pitts. E. E. Co., 07 Penn. St. 211; Eailroad v. Lockwood, 
 17 Wall. 367, and authorities there cited; Eailroad Co. v. Pratt, 22 Wall. 123. 
 
Common Caeeiees. 553 
 
 mon carrier cannot exempt itself from liability, by contract or other- 
 wise, for losses or injuries caused by the negligence of its agents and 
 servants ; * and others holding with the Englisli decisions, already cited, 
 that the railway carrier may thus limit its liability by an express con- 
 tract.'^ In the second place, we have two classes of contracts for the 
 conveyance of live stock ; one broad and general, covering the entire 
 business, and the other limited to a few particulars. 
 
 § 684. The contract now in use for the conveyance of live stock on 
 many of our railroads is very comprehensive. It charges the shipper 
 with the loading and unloading of the stock, at his own risk, and it 
 imposes upon him in express terms all and every risk of injuries which 
 the animals or any of them may receive in consequence of being wild, 
 unruly, vicious or weak, or by escaping, maiming or killing them- 
 selves or each other, and all injuries from delays, or in consequence of 
 heat, suffocation or the ill effects of being crowded in the cars upon the 
 road, or from the burning of any hay or straw or other material used 
 by the owner in feeding them, and all damages sustained by delay. 
 The contract assumes that the owner or his servant shall accompany 
 and water and feed and have charge of the cattle ; and that he shall 
 ride on the train, without paying fare, at his own risk. The railroad 
 company in substance only undertakes to convey the car containing the 
 •cattle safely, and with reasonable dispatch ; it lets the cars at a fixed 
 sum, and agrees to run them to the place of destination ; the owner 
 retaining the custody and care of the cattle while in transit.' 
 
 141 Conn. 333; 10 Ohio St. 65; 55 Penn. St. 53; 22 Wall. 123. " I do hereby re- 
 lease the said railroad company from any and all claims which may or might arise for 
 ■damages or injury to said stock, while in the cars of said company, or for delay in 
 Its carriage, or for escape thereof from the cars, and generally from all claims relating 
 thereto." This release does not exonerate the company, under the law of Pennsyl- 
 vania, from the consequences of negligence in the performance of their duty as car- 
 riers, such as permitting straw to be used in a car where a horse is placed, and which 
 taking fire detroys the horse. Powell v. Penn. E. Co., 32 Penn. St. 414. 
 
 2 This is unquestionably the rule in this State. Mynard v. Syracuse, B. & IST. Y. 
 R. E. Co., 71 ISr. T. 180; McKinney v. Jewett, 24 Hun, 19; Nicholas v. N. Y. C. I'c 
 H. E. E. E. Co., 89 N. Y. 370; Wilson v. N^. Y. C. & H. E. E. E. Co., 27 Hun, 149; '.-7 
 K. Y. 87. But the cases all hold that the contract must expressly and unmistakably 
 provide for such exemption. 
 
 8 Penn v. Buffalo & Erie E. Co., 3 Lansing, 443; S. C. 49 N". Y. 204. The report 
 
 gives a copy of the 
 
 STOCK CONTEACT. 
 
 Clbvelaistd Station, Dec. 8, 1866. 
 Memorandum of an agreement made and concluded this day above named, by and 
 between Cleveland, Painesville & Ashtabula, Erie & North East, Buffalo cfe State 
 Line (afterward the Buffalo & Erie Eailroad Company, the defendant) Eailroad Com- 
 panies, of the first part, by their agent at the above named station, and Penn. & Co., 
 of Cincinnati, of the second part, witnesseth : That whereas, the said railroad com- 
 
654 Law of IJailmexts. 
 
 § 685. It does not require a special contract to relieve the carrier from 
 damages resulting from the vitality of the freight, without fault on 
 his part. And although he is prima facie bound to furnish safe and 
 suitable cars, it is agreed that the shipper may assume any risk of 
 injuries likely to arise from the size or construction of the cars.^ Is 
 
 Ijanies transported live stock only at first-class rates, as per their tariffs, excepting 
 only in cases where the owners assume certain risks and incidents specified below, in 
 consideration of obtaining the transportation at reduced rates; and whereas the said 
 party of the second part in the present case assumes and takes upon himself said risks 
 and incidents for said consideration : Now, therefore, in consideration that said rail- 
 road companies will transport for the said party such live stock at the reduced rate of 
 
 forty-five dollars for single decks, and dollars for double decks per car-load from 
 
 Cleveland to Buffalo, and cliarges advanced, 
 
 I'he said party of the .sii'coud part does hereby agree to take, and hereby does assume 
 all and e^'ery risk of injiuics which the animals or either of them may receive in con- 
 sequence of any of them being wild, unruly, vicious, weak, escaping, maiming or kill- 
 ing tliemselves or ea(di otlier, or from delays, or in consequence of heat, suJfocation 
 or the ill eifects of being crowded upon the cars of said railroad, or on account of being 
 injured by the burning of hay, straw or any other material used by the owner for feed- 
 ing tlie stock 01' otherwise, and for any damage occasioned tlieicby, and also all risk 
 of any loss or damage which may be sustained by reason of any delay, or from any 
 other cause or thing in or incident to, or from or 4n the loading or unloading of said 
 st0('k. 
 
 And it is further agreed that the said party of the second part is to load and unload 
 said stock at his o^^■u risk, the said railroad companies furnishing the necessary 
 laborers to assist, under the direction and control of the said party of the second part, 
 who will examine for himself all the means used in the loading and unloading, to see 
 that they are of suthcient strength and of the right kind, and in good repair and order. 
 
 And it is further agreed between the parties hereto, that each and every of the 
 parties riding free to take care and charge of said stock, do so at their own risk of 
 personal injury from whatever cause; and the said party of the second part, for the 
 consideration aforesaid, hereby releases and agrees to release and to hold hai-mless 
 and keep indemnified tlie said party of the first part of and from all damages, actions, 
 claims and suits on account of any and every the injuries, loss and damage herein- 
 before referred to, if any such occurs or happens. 
 
 And this agreement further witnesseth, tliat the said party of the second part has 
 this day delivered to said companies five car-loads of cattle to be transported to Buffalo 
 on the conditions, stipulations and understandings above expressed. 
 
 Names of men passed in charge of stock : D. W. Bakrow. 
 
 A. Hill, W. Station Agent. 
 D. Pexn, by D. W. Baekow. 
 
 See analogous contract for carrying coal; Malloryv. Tioga Railroad Co., 39 Barb. 
 488; aflirmed, 32 How. Pr. 616, n. Under the contract above set forth the carrier is 
 not exempted from liability for a loss of the'stock caused by the burning of the bed- 
 ding in the stock-car through his own negligent act or omission, for the reason that 
 the contract does not expressly exempt him from lialjility for negligence. Ilolsapple 
 \ . R., W. & O. R. R. Co., SU X. Y. 275. Acontract for tlie transportation of property 
 "at the owner's risk" does not free the carrier from liability for losses accruing 
 through his gross negligence. Canfield v. Baltimore & Ohio R. R. Co., 93 N. Y. o32. 
 
 1 Squire v. N. Y. C. R. Co,, !)8 Jlass. 239. The action was for damages caused to 
 some hogs that were smothered on the way from Suspension Bridge to Albany; and 
 the court asserted the validity of a contract by which the person delivering the 
 animals assumed the risk of injuries resulting from the size and mode of construction 
 of the cars and the manner of stowing the property, where the owner asisted in load- 
 ing the cars and accompanied them. The court cites Kimbal v. Rutland & B. R. Co., 
 26 Vt. 247; and Bissell v. M". Y. C. R. Co., 2-5 N. Y. 442, as involving the same question, 
 
Common Cakeiees. 655 
 
 there then any principle of law to prevent the shipper from making a 
 valid contract, hiring the use of specific cattle cars for a given trip, 
 with the requisite locomotive power to move them, and assuming any 
 and every risk of the conveyance ? ^ The carrier may, under the 
 English decisions and under the decisions of many of our States, 
 exempt himself as common carrier for responsibility for any degree of 
 negligence on the part of his servants, agents and employees,^ includ- 
 ing negligence of servants and employees in the selection of a car for 
 the transportation of live stock ; ' and if the shipper elects to have his 
 property transported under a contract containing such stipulations 
 he must necessarily assume, without express words, all of the excepted 
 risks. He may therefore for a consideration expressly assume the risk 
 of injuries to swine from heat, suffocation or the ill effects from being 
 crowded together in the car ; and the courts will give effect to the 
 stipulation, even where the injury might have been prevented by a 
 reasonable watering or cooling of the hogs with water.* Retaining 
 the care and custody of the stock, it is the shipper's duty under the 
 contract to guard against all risks of this kind. 
 
 Assuming that the carrier cannot relieve himself by stipulation 
 from the duty to fulfill his contract with fidelity and reasonable 
 diligence ; it is nevertheless quite apparent that a railroad company, 
 by reason of its contract, occupies the position of a private carrier for 
 hire; and that the agreement prescribes the extent of its liability, 
 unless a loss arises from some wrongful act, either willful or negligent, 
 on the part of the carrier, its agents or servants. ° 
 
 We have already referred to the analogous contract under which a 
 steamboat or steam-tug takes a barge or vessel in tow, without other- 
 wise assuming the custody or control of her, on a stipulation limiting 
 
 namely, the validity of the contract; and two English cases holding like stipula- 
 tions valid and reasonable; i.e., Pardington v. South "Wales K. Co., 1 H. & N. .392; 
 and Beal v. South Devon R. Co., 5 H. & N. 875; 3 H. & N. 337. 
 
 1 Shaw V. York & N. Midland E, Co.. 6 Eng. Eail. Cas. 87; Austin v. Manchester 
 & Sheffield R. Co., 5 Eng. Law & Eq. 329. 
 
 2 French v. BufCalo, N. Y. & Erie R. Co., 4 Keyes, 108; Bissell v. IST. Y. Central E. 
 E. Co., 25 N. Y. 442; Smith v. N. H. & N. R. Co., 12 Allen, 531; Keeny v. Grand 
 Trunk E. E. Co., 59 Barb. 104; Mynard v. Syracuse, etc., E. R. Co., 71 N. Y. 180; 
 Nicholas V. N. Y. C. & H. R. R. E. Co., 89 N. Y. 370; McKinney v. Jewett, 24 Hun, 
 19; Kenney V. X. Y. C. & H. R. R. R. Co., 125 N^. Y. 422. 
 
 8 Wilson V. N. Y. C. & H. E. E. E. Co., 27 Hun, 149; 97 N. Y. 87. 
 
 * Cragin v. N. Y. C. & H. E. E. E. Co., 51 N. Y. 61. 
 
 f Penn v. Buffalo & Erie E. E. Co., 49 N. Y. 204, 208; French v. Buffalo, N. Y. & 
 Erie E. R. Co., 4 Keyes, 108; Farnham v. Camden & Amboy E. E. Co., 55 Penn. St. 
 53; Colton v. Cleveland & Pittsburgh E. Co., 67 Penn. St. 211 ; New Jersey S. N. Co. 
 V. Merchants' Bank, 6 How. U. S. 644. 
 
65G Law of Bailments. 
 
 the liability of the proprietors of the towing boat within a very narrow 
 range.^ The owners of the steam-tug or steamboat engaged in the 
 business of towing barges and canal-boats are not regarded as common 
 carriers. They do not receive the property into their custody ; they do 
 not exercise any control over it other than such as results from the 
 towing of the boats in which it is laden ; the master and crew of the 
 boats in tow retain the care and charge of the goods on board, subject 
 only to the general authority of the master of the steamboat guiding 
 the flotilla. There is here no sufficient delivery to constitute a bail- 
 ment; certainly none suflELcient to charge the owners of the tug as 
 common carriers.^ They may therefore limit their liability to an 
 honest and fair fulfillment of the contract, according to its true sense 
 and meaning. And the contract is to be enforced on the same principles 
 which apply to any other special agreement.^ Under a general ex- 
 emption, they are liable for injuries arising from their own personal 
 negligence, from the want of good faith, or from the gross negligence 
 of their agents and servants.^ The same principle apphes to the 
 special contract of a common carrier, where the same is broad and 
 general in its terms.'' 
 
 § 686. Under a special contract by a common carrier, the relations 
 of the parties are changed ; and it depends upon the form and scope of 
 the contract whether it is to be considered as creating an exemption 
 from certain losses and leaving the carrier liable as upon the common 
 law for all others, or as a contract creating a special bailment for hire, 
 with such liabilities as result naturally from the terms of the agree- 
 ment." If a carrier exempts himself from liability for losses by fire, he 
 remains liable as a common carrier with that exception.' On the other 
 
 1 Ante, §§ 562, 480. 
 
 2 Alexander t. (lieene, 3 Hill, 0; 7 Hill, 5.3.3; Wells v. Steam Nav. Co., 2 N. Y. 
 204; Caton V. Rumney, 13 Wend. 387; Thompson v. Bliss, V> ji.lbany Law Journal, 
 296, and cases there cited ; Brown v. Clegg, 63 Penn. St. 41; 9 Wall. 665; 10 Wall. 177. 
 
 s Milton V. Hudson Eiver S. Co., 37 N. Y. 210; Arctic Fire Ins. Co. v. Austin, 54 
 Barb. 550. 
 
 « Wells \. Steam IS'av. Co., 2 >f. Y. 208; 8 X. Y. 375; French v. Buffalo, N". Y. & 
 Erie R. R. Co., 4 Keyes, 108; Wooden v. Austin, 51 Barb. 9; Dorr v. N. J. Steam 
 Nay. Co., 11 N. Y. 4S5. 
 
 s Mynard v. Syracuse, etc., I!. R. Co., 71 N". Y. 180; iq"icholas v. N. Y. C. & II. E. 
 E. R. Co., 89 X. Y. 370; Canfleldv. Baltimore & Ohio E. R. Co., 93 X. Y'. 532; Hols- 
 apple V. R. W. & O. R. R. Co., 86 X. Y. 275; Kenney v. X. Y. C. ct H. R. R. E. Co., 
 125 X. Y. 422; McKinney v. Jewett, 90 X. Y. 270; Jennings v. Grand Trunk Ey. 
 Co., 127 X. Y. 4:!s. 
 
 « Dorr V. Xew Jersey Steam Xav. Co., 11 X. Y. 485, 493; 4 Sandf. R. 1,30; Wyld v. 
 Pickford, 8 Mces. & Welsh. 443. 
 
 ' Farnham \: Camden & Amboy R. Co., 55 Penn. St. 53; 6 How. U. S. 844, 384. 
 
Common Caeeiees. 557 
 
 hand, if he makes a general contract for the conveyance of live stock 
 retained in the shipper's care and custody, he becomes a bailee for 
 hire, and his responsibility arises out of his contract.^ And he must 
 perform the contract according to its true intent and purport.^ The 
 burden of proof rests with the plaintiff, bringing an action on a special 
 agreement ; or where he sues on a contract by the carrier, containing 
 an exemption from certain risks. The plaintiff must establish his 
 cause of action, by showing a loss within the scope of the carrier's 
 undertaking; and to do this, he may be obliged to prove the actual 
 cause of the loss.' 
 
 § 687. Matters of defense to actions against common carriers, being 
 for the most part of a negative character, need not be considered at 
 length. It will be sufficient to notice a few special defenses or 
 situations. 
 
 1. Carrying goods in a sealed railroad car (in the Blue Line), to bo 
 delivered unbroken, the essence of the carrier's contract is to carry and 
 deliver the goods safely ; and the carrier is not guilty of a conversion 
 of the goods where he removes them, for a good reason, into another 
 car.^ 
 
 2. The carrier cannot be held liable to a stranger, there being no 
 subsisting relation of contract between them ; as where a passenger has 
 the money of a friend in his custody, and is killed by the falling of a 
 railroad bridge and burned up with the money.* A bailee of money, 
 having properly delivered it to the carrier, might recover against the 
 carrier the amount lost or consumed.'' 
 
 3. A carrier may set up as a defense to an action for goods by the 
 shipper, that the same were taken from him under legal process in a. 
 
 ^ Penn v. Buffalo & Erie E. Co., 49 N. T. 204; opinion iDy Millee, J., in French v. 
 Buffalo, N. T. & Erie E. E. Co., 4Keyes, 108; ante, §237. 
 
 2 Keeney v. Grand Trunk E. Co., 47 N". T. 525. 
 
 2 " The dangers incident to railroad transportation, fire, and all other unavoidable 
 accidents excepted." Under this clause, the burden of proof is with the shipper. 
 Cottony. Cleveland & P. K. Co., 67 Penn. St. 211; held the same under a like limita- 
 tion; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S. 344, .384; and in Farn- 
 ham V. Camden & Amboy E. Co., 55 Penn. St. 53; and in Lamb v. Camden & Amboy 
 R. E. Co., 46 N. T. 271; and in Whitworth v. Erie Ey. Co., 87 IST. Y. 413, 419; and in 
 Cochran v. Dinsmore, 49 IST. T. 249. 
 
 * Commonwealth v. Power, 7 Met. E. 596; Hale v. Power, 12 Met. E. 482; Mark- 
 ham V. Brown, 8 N. H. 523; Flint v. IST. & N. T. Transp. Co., 34 Conn. S.-jS; 75 111. 
 125; 55 ISr. T. 108; Harris v. Stevens, 31 Vt. 79; Tucker v. Housatonic E. E. Co., 39 
 Ct. 447. 
 
 = First National Bank of G. v. M. & C. E. Co., 20 Ohio St. 259. 
 
 ^ Kellogg V. Sweeney, 1 Lans. 397; Woolley v. Edson, 35 Vt. 214; Casey v. Suter, 
 36 Md. 1. 
 
558 Law of Bailments. 
 
 suit brought by a third party, whereof the shipper was duly notified.^ 
 Tlie carrier may also deliver the goods to the true owner on demand, 
 and interpose the title of that party and the delivery to him as a de- 
 fense to an action by the shipper ; ^ he may likewise hold for the true 
 owner, the consignee to whom a package of money is sent by an agent.' 
 4. The carrier may also set up any defense arising under the contract, 
 by bringing himself within the exceptions contained in it ; or by showing 
 that the plaintiff has failed to fulfill its terms. E. g., under an agreement 
 made by a common carrier, that he is not to be held liable for any 
 loss or damage, unless a claim is made therefor within so many days, 
 a reasonable time, from the receipt of the goods or package, or from 
 the time they were delivered by the carrier ; the action is lost unless 
 the claim is made within the stipulated time.' 
 
 1 Bliven V. Hudson Kiver R. E. Co., 39 Barb. 188; 36 N. T. 403; Livingston v. Miller, 
 48 Hun, 232; Jewett v. Olsen, IS Oregon, 419; McVeagh v. Atchison, T. & S. F. K. 
 E. Co., 3 X. M. 20-5. It is otherwise where the goods are taken by an officer without 
 legal process. Bennett v. Am. Exjj. Co., 83 Jle. 236. 
 
 2 American Ex. Co. v. Greenhalgh, 80 111. OS; Xat. Bank of Commerce v. Chicago, 
 B. & N. E. E. Co., 44 Minn. 224, 230. 
 
 8 Thompson v. Fargo, 49 N. Y. ISS. 
 
 * Express Co. v. Caldwell, 21 Wall. 264. The action being for a package, the 
 defendant set up as a defense that when the package was received ' ' it was agreed 
 between the company and the plaintiff, and made one of the express conditions upon 
 which the package was received, that the company shoiild not be held liable for any loss 
 or damage to the package whatever, unless claim should be made therefor within ninety 
 days from its delivery to it." And the stipulation was held reasonable and valid, the 
 time of transit being quite brief. The court cites the analogous conditions in policies 
 of insurance, which are held valid: Eiddlesbarger v. Hartford Ins. Co., 7 Wall. 386; 
 and like conditions in the contracts of telegraph companies. Wolf v. Western Union 
 Tel. Co., 62 Penn. St. 83; Young v. Western Union Tel. Co., 34 N. Y. Supr. 390; 
 and cases against common carriers; Lewis v. Great Western E. Co., 5 Hurlstone & 
 Norman, 867; Southern Ex. Co. v. Caperton, 44 Ala. 101. To the same effect, see 
 Southern Exp. Co. v. Hunnicutt, ri4 Miss. 560; Jennings v. Grand Trunk Ey. Co., 
 127 X. Y. 438. But if the time limited is unreasonable, the failure to give the notice 
 ■within such time will not bar a recovery. 
 
Caebiees of Passengees. 559 
 
 CHAPTER X. 
 
 CARKIEES OF PASSENGERS. 
 
 I. Dftt to Receive and Caeey : REGtrLATioNS. 
 
 § 688. A common carrier of passengers is one who holds himself out 
 to the public as ready to receive and carry on his route for hire all per- 
 sons who apply for a passage. He assumes the character by entering 
 upon the business, and representing himself to the community as under- 
 taking to convey, indifferently, all such as may desire to be received as 
 passengers.^ His duties resemble those of the common carrier of goods ; 
 Uke him, he has entered into an engagement with the public, and is 
 bound to serve all who require his services.^ He has a right to demand 
 prepayment of his hire, but is not at liberty to choose between those 
 whom he will and will not receive ; neither can he, under pretense of de- 
 manding exorbitant fare, escape from his obligation to carry any and 
 every individual who pays or tenders to him the usual rate of fare.' 
 
 The owners of stage coaches and steamboats, and railroad companies, 
 who hold themselves out as common carriers of passengers, are bound 
 to receive all who require a passage, so long as they have room, and 
 there is no legal excuse for a refusal.* As to what will be regarded as 
 a legal excuse, Mr. Justice Stoey, in Jencks v. Coleman, says : ^ " There 
 is no doubt that this steamboat is a common carrier of passengers for 
 hire; and, therefore, the defendant, as commander, was bound to take 
 the plaintiff as a passenger on board, if he had suitable accommodations, 
 and there was no reasonable objection to the character or conduct of 
 the plaintiff. The question then really resolves itself into the mere con- 
 sideration whether there was, in the present case, upon the facts, a rea- 
 
 1 Middleton v. Fowle, 1 Salk. 182, 249. 
 
 2 Messiter v. Cooper, 4 Esp. K. 260. This is made obligatory 1)7 statute in New 
 York. See Laws of 1892, Chap. 676, § 34. See Penal Code, § 381. 
 
 ^ Beekman v. Schenectady & Saratoga Eailroad Co., 3 Paige Ch. E. 45. 
 
 * Bennett v. Button, 10 N. Hamp. E. 481 . No person can be denied the full and quiet 
 enjoyment of the accommodations, advantages, facilities and privileges of any public 
 conveyance on land or water, because of race, creed or color. N. T. Laws of 1881, 
 Chap. 400; Penal Code, § 383. 
 
 5 Jencks v. Coleman, 2 Sumn. K. 221 ; Markham v. Brown, 8 N. H. E. 523. 
 
560 Law of Bailments. 
 
 sonable ground for the ref uscal. The right of passengers to a passage on 
 hoard of a steamboat is not an unlimited right. But it is subject to such 
 regulations as the proprietors may prescribe, for the due accommodation 
 of passengers, and for the due arrangement of their business. The pro- 
 prietors have not only this right, but the further right to consult and 
 provide for their own interests in the management of such boats, as a 
 common incident to their right of property. They are not bound to ad- 
 mit passengers on board who refuse to obey the reasonable regulations 
 of the bi );it ; or who are guilty of gross and vulgar habits of conduct ; or 
 who make disturbances on board ; or whose characters are doubtful or 
 dissolute or suspicious ; and a fortiori, whose characters are unequivo- 
 cally bad. Xor are they bound to admit passengers on board whose 
 object is to interfere with the interest or patronage of the proprietors, 
 so as to make the business less lucrative to them." ^ 
 
 § 689. It is the legal duty of the common carrier of passengers to 
 receive and convey all orderly persons applying for a passage ; "^ and he 
 cannot bind himself by a valid agreement in contravention of his legal 
 duty in this respect. He stands in a relation to the traveling public 
 quite like an innkeeper.'' He cannot set up as a legal excuse for refus- 
 ing to receive a passeng^, that his line of stages run in connection with 
 another coach which extends the line to another place, and that he has 
 agreed with the j)roprietors of such other coach not to receive passen- 
 gers who come from that place, on certain days, unless they come in his 
 conveyance. If the passenger is a lit person to be admitted, and there 
 is no evidence of a design on his part to injure the carrier's business, he 
 is bound to receive him, notwithstanding his agreement.* 
 
 The duty of the carrier of passengers, to receive such as apply for a 
 passage, is qualified and limited by the right which he has to prescribe 
 reasonable regulations for the order and convenience of passengers ; in 
 
 ' A carrier of passengers may establish on liis car or vessel an agency for the delivery 
 of l)aggage, exchiiUng others desiring to act in the same caiiacity. Barney v. O., B. & 
 H. S. Co., OTX. T. 301. 
 
 - Higgins V. Watervliet T. A- R. Co., 46 X. Y. 2o. To wrongfully refuse to carry a 
 passenger is an actionable tort. Lake Erie & W. Ey. Co. v. Acres, 108 Ind. 548; 
 Nevin v. Pullman Palace Car Co., 106 111. 222. 
 
 3 Ante, §§ 4Y1, 4T2, and .520. 
 
 •* Bennett v. Button, 10 N. II. 481; X. T. Session Laws of 1802, Chap. 676, § 34; 
 Barney v. Oyster Bay &. H. Steamboat Co., 2 X. Y. Sup. Ct. (T. & C.) 598; Barney 
 V. Steamboat D. R. Martin, 8 Alb. L. J. 54. A rule of a railroad company prohibit- 
 ing passengers on its trains from wearing the uniform cap of a line of steamers run- 
 ning in opposition to a line of steamers running in connection with the railroad, is 
 not reasonable and cannot legally be enforced. South Florida Railroad Co. x. Khoa:ls, 
 25 Fla. 40. 
 
Careiebs of Passengbks. 561 
 
 respect to the manner of giving and collecting tickets ; for the protec- 
 tion of passengers from the annoyance of a clamorous solicitation by 
 runners and agents of other carriers, hotels or inns ; for the prevention 
 of disorderly conduct in and about the places of arrival and departure ; 
 and for the protection and peace of his passengers on the journey.^ 
 
 § 690. The carrier is not bound to receive and carry drunken or dis- 
 orderly persons. He may refuse to receive a drunken man as a passen- 
 ger ; 2 and he may refuse to receive a noisy and disorderly person, or 
 having received he may exclude him from the conveyance on that ac- 
 count.' After having received a drunken or insane person and taken 
 his fare as a passenger, the carrier cannot rightfully exclude him unless 
 he misbehaves on the journey.^ The same rule has been applied, where 
 a steamer received on board as a passenger a person of a bad or doubt- 
 ful character, and afterward excluded him from the conveyance.^ 
 
 An innkeeper, whose right and duty in this particular are nearly the 
 same, is bound to receive as a guest every person who behaves him- 
 self properly and is ready to pay for his accommodations ; and has no 
 right to demand the name, or to inquire into the business of a traveler 
 who stops at his house. ^ So a passenger has a right to the presump- 
 tion that he is engaged in his lawful calling, and cannot be subjected 
 to an inquisition mto his private affairs by a general and public agent. 
 Before he can be rejected and excluded from a public conveyance, there 
 must appear against him some valid and good reason for his exclusion ; 
 a reason which the law recognizes as sufficient to deprive him of the 
 right which he holds in common with all other men. It must be shown 
 that he has lost or forfeited his right.'' 
 
 § 691. It is the right and it is the duty of a carrier of passengers to 
 
 ^ Jencks v. Coleman, 2 Sumn. E. 221; Markham v. Brown, 8 ^N". H. .523; Pease v. 
 D. L. & W. E. E. Co., 101 N. Y. 367; Fluker v. Georgia E. E. & B. Co., 81 Ga. 461. 
 
 2 Vinton V. Middlesex E., 11 Allen, 304; Murphy v. Union E., 118 Mass. 228; but 
 see Milliman v. N. Y. C. & H. E. K. Co., 66 N. Y. 642. 
 
 8 People V. Caryl, 3 Parker C. E. 326; 46 N. Y. 23. 
 
 * Coppin V. Braithwaite, Exch. 8 Jurist, 875 ; Pearson v. Duane, 71 U. S. 60-5 ; 
 Putnam v. Broadway & Seventh Ave. E. E. Co., 55 N". Y. 108. The carrier may 
 lawfully expel from a car a passenger who is unablo to sit up and is vomiting, whether 
 the sickness comes from drunkenness or not. Lemontv. Washington & G. E. E. Co., 
 1 Mackey, 180. He may also lawfully remove at a station [and put in charge of the 
 proper authorities a passenger who has delirium tremens, and who frightens and 
 annoys the other passengers. Atchison, T. & S. F. E. E. Co. v. Weber, 33 Kansas, 
 543; King v. Ohio & M. Ey. Co., 22 Fed. Eep. 413. 
 
 5 Pearson v. Duane, 4 Wall. 605; Bretherton v. Wood, 3 Brod. & B. 54. 
 
 «Eex. V. Ivers, 7 Carr. & Payne, 213; 6 id. 742. 
 
 ' Bennett v. Button, 10 N. H. 481; Bennett v. Peninsular Steamboat Co., C. B. 
 775. 
 
 36 
 
6^^■^ Law of Bailments. 
 
 9 
 
 prescribe and enforce reasonable rules for the preservation of social 
 order. In a car, in the cabin of a vessel, or in the saloon of a steam- 
 boat, he has a right, and it is his duty, to enforce proper deportment 
 and (leceiK-y of speech.^ Among those eating at the same table, he 
 has a right to insist upon the usages of society, or that decorum which 
 is r)b.served among civilized people, or, as Chief-Justice Tmdal puts it, 
 conduct becoming a gentleman.'^ Coming together casually, in a 
 steamer or in a railway car, a segment of the body politic, the princi- 
 ples governing a resident population accompany the travelers, and 
 bind them, as members of a larger society, in their conduct towards 
 each other. Profane, obscene or coarse language, threats of violence, 
 that which the law punishes as disorderly conduct in a like company 
 casually assembled in a city, is equally disorderly and reprehensible 
 in a car or on a steamboat filled with passengers ; and so justifies the 
 carrier, as it does an innkeeper, in excluding the offender from the 
 company, the inn or the car.** 
 
 The duty of the carrier binds him to protect a passenger against 
 misconduct or violence from his agents and servants, and from other 
 passengers.* That is to say, it binds him to exercise the utmost vigi- 
 lance in maintaining order and in guarding passengers against any 
 violence that may be reasonably anticipated, or naturally expected to 
 
 ^ Cliamberlain v. Chandler, 3 Mason, 242. 
 
 2 Pendergast v. Campton, 8 Carr. ct Payne, 454; JTodeu v. Johnson, 12 Q. B. 218; 
 2 Eng. L. & Eq. 201. 
 
 ^ Peavy v. Georgia R. It. Co., 81 Ga. 485. Profane cursing and swearing is treated 
 in the statutes of New York as an offense against public decency. 2 E. S. 93.3, 5tli ed. ; 
 People V. Porter, 2 Park. Cr. 14. The provisions inserted in the Penal Code in respect 
 to profane swearing have been repealed. Drunkenness incapacitates a man in many 
 •ways. MoMahon v. Harrison, 2 Seld. 6 N". Y. 443. It renders a man found in that 
 condition on the streets, or in any public place, liable to arrest. Commonwealth v. 
 Boon, 2 Gray (Mass.), 74; State v. Waller, 3 Murph. (X. C.) 229; ante, §§ 471, 472. 
 
 4 Flint V. X. & N. Y. Transp. Co., 34 Conn. 5.58; Norwich Tr. Co. v. Flint, 13 Wall 
 3; Byrant V. PJch, 106 Mass. ISO; Pittsburgh R. v. Hinds, .53 Penn. St. 512; Mulli- 
 gan V. N. Y. & 11. B. Ry. Co., 120 N. Y. 500; Carpenter v. Boston & Albany E. R. 
 Co., 07 N. Y. 404; Dwindle v. X. Y. C. ..t H. R. R. R. Co., 120 X. Y. 117; Stewart 
 V. Brooklyn & Crosstown R. \l. T'o., 00 X. Y. 588; New .Jersey Steamboat Co. v. 
 Brockett, 121 U. S. 637; Goddard v. Grand Trunk Ry. Co., 57 Me. 202; Croaker v. 
 Chicago & Xorthwestern Ry. Co., 30 Wis. 057; Sherley v. Billings, 8 Bush (Ky.), 147. 
 In L. M. r,. R. Co. V. Wetmore, 19 Ohio St. 110, the railroad company was not held 
 liable for a blow given In a quarrel by a servant whose business it was to check bag- 
 gagr. Where a passenger by his own misbehavior, while being transported, has pro- 
 voked a personal encounter between himself and on- of the employees of the carrier, 
 the carrier is not liable for the results. Scott v. rentr.il Park, etc., R. R. Co., .53 
 Hun, 414. The carrier is not liable for an injury done to a passenger by an employes 
 in self-defense. New Orleans & N. IX. E. Co. v. Jopes, 142 U. S. 18. 
 
Caeriees of Passengers. 5(J3 
 
 arise under the circumstances ; first, in refusing to receive drunken, 
 disorderly or riotous persons as passengers ; and- second, in controlling 
 and ejecting them from the conveyance. For a failure to exercise this 
 police power, when the occasion requires it, the carrier is liable. He is 
 not liable specifically for the wrongful acts of one passenger to another.^ 
 § 692. To secure the safety and comfort of travelers, the proprietors 
 of steamboats, railroads and hotels are invested with the right of ]Dre- 
 serving peace and order in the depots, stations, landing-places and 
 grounds used by them in the transaction of their business ; and this 
 right may be enforced in a manner established by rules, or without 
 them, by the exercise of a reasonable and proper authority reposed in 
 them by law.^ Railroad companies have also the right, by suitable 
 regulations, to require passengers to purchase their tickets before they 
 enter the car, and to exhibit them when requested, at any time on the 
 journey, and finally to surrender them." The ticket is used as a 
 voucher in making up the accounts of the road. It is therefore con- 
 sidered a reasonable regulation of the company that passengers shall 
 preserve and show their tickets, or pay the conductor the regular fare ; ^ 
 
 1 Putnam v. Broadway & Seventh Ave. R. E. Co., 55 N". Y. 108; Pittsburgh, F. W. 
 & C. E. E. Co. V. Hinds, .53 Penu. St. 512; Flint v. Norwich & N. Y. Transp. Co., 34 
 Conn. 554; 6 Blatch. C. C. E. 158; Pittsburgh & C. E. R. Co. v. Pillow, 76 Penn. St. 
 510; New Orleans, S. L. & Ch. R. R. Co. v. Burke, 16 Albany Law Journal, 23. See 
 ■Winnegar v. Central Passenger Ry. Co., So Ky. 547. As to the extent of a carrier's 
 liability for a failure to protect his passengers from the violence of strangers, see 
 Weeks v. N. Y., N. H. & H. R. R. Co., 72 N. Y. 50, a case of robbery from the per- 
 son. A railroad corporation is not liable for not preventing the use of profane and 
 obscene language, the indecent exposure of the person and other disorderly conduct 
 by intruders at its station, in the presence of a female passenger awaiting the arrival 
 of a train where it is not shown that the company had notice of any facts which justi- 
 fied the expectation of such an exhibition of depravity. Batton v. South & North 
 Alabama R. E. Co., 77 Ala. 591. 
 
 2 Markham v. Brown, 8 N. H. 523; 12 Met. 482; 7 Met. 596; 2 Sumn. R. 221. 
 
 3 Pullman Palace Car Co. v. Reed, 75 III. 125; Havens v. H. & N. H. R. Co., 28 
 Conn. 88; Maples v. N. Y. & N. H. R. Co., 38 Conn. 557; Hibbard v. N. Y. & Erie 
 E. Co., 15 N. Y. 455; Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 295; Pease 
 V. D. L. & W. R. R. Co., 101 N. Y. 367; Lynch v. Metropolitian El. R. Co., 90 N. Y. 83. 
 
 * Downs V. N. Y. & N. H. E. Co., 86 Conn. 287; Standish v. Narragansett Steam- 
 ship Co., Ill Mass. 512 ; Crawford v. Cincinnati, etc., R. R. Co., 26 Ohio St. 580; 
 Shelton v. Lake Shore, etc., Ry. Co., Id. 214. A party riding on a commutation 
 ticket is also boimd to show it on request, or pay his fare; 36 Conn. 287; but where 
 he has it on his person, and the general fact that he has such a ticket is known to the 
 conductor, his failure to find it on the instant will not justify his expulsion from the 
 car. He is entitled to a reasonable time to search his pockets or clothes for it. 
 Maples V. N. Y. & N. H. R. E. Co., 38 Conn. 558. The loss of a ticket for a berth in 
 a sleeping car, after buying and paying for it, does not justify the conductor who has 
 evidence of the facts in expelling the passenger from the car; and it has been held 
 
564 Law of Bailments. 
 
 that they shall use or ride on the ticket according to the agreement,, 
 fixing the train or the time or the season for its use ; ^ and that a rule 
 or custom is reasonable which requires passengers soon after starting 
 to surrender their tickets to the conductor and receive his checks in 
 place of them ; ^ there being a perfect reciprocity in the custom, secur- 
 ing to the passenger a token or evidence of his right to a passage on 
 the train.'' 
 
 § 693. The regulations of a railroad must be reasonable and consist- 
 ent. The company cannot require a passenger to procure his ticket 
 beforehand, imless they furnish him the facilities or give him the 
 opportunity of doing so ; and they cannot charge him a higher rate for 
 omitting to do what they render impracticable.* Admitting a regula- 
 tion to be valid, requiring a passenger to pay an increased rate where 
 he does not procure his ticket before entering the car, ^ the rule is not 
 reasonable or valid where it is the fault of the company that a pas- 
 senger does not procure his ticket. They must keep their office for the 
 sale of tickets oiDen, with an agent in it ready to supply the demand, 
 or they cannot make an extra charge for the omission.^ 
 
 that the Palace far Company is Uable in damages for the act of expelling him, but 
 not liable in exemplary damages. Pullman Palace Car. Co. v. Reed, 7.3 111. 125. 
 
 1 " Good this date only," stamped on the ticket, at the time it is purchased, 
 becomes a part of the contract. Elmore v. Sands, 'A X. Y. 512; Boston & Lowell R. 
 R. Co. V. Proctor, 1 Allen, 207; Barker v. Coflin, .31 Barb. 550; Boice v. Hudson R. R. 
 Co., 61 Barb. Oil; Shedd t. Troy & Boston R. Co., 40 Vt. 88; Deitrich v. Penn. R. 
 Co., 71 Penn. St. 432; Hamilton v. X. Y. C. R. R. Co., 51 X. Y. 100; Hill v. S. B. & 
 N. Y R. Co., 63 X. Y. 101; Little Rock, etc., Ry. v. Dean, 43 Ark. 529; Lillis v. St. 
 Louis, etc., R. R. Co., 64 JIo. 464; Pennsylvania Co. v. Hine, 41 Ohio St. 276; 
 Pennington v. Philadelphia, etc., R. R. Co., 02 Md. 115. 
 
 sXorthern Railroad Co. a, Page, 22 Barh. 130; Loring v. Alborn, 4 Cush. R. 608; 
 Cheney v. B. & M. R. R. Co., 11 Met. 123. 
 
 2 The conductor may take up the tickets in this manner, on giving a check. State 
 V. Thompson, 20 X". H. 250; Havens v. Hartford R., 28 Conn. 09; Cleveland E. v. 
 Bartram, 11 Ohio St. 457; Jennings v. Great Xorthern R. L. R., 1 Q. B. 7. The 
 question as to the validity of the regulation is one of law. Tedder v. Fellows, 20 X. 
 Y. 120; People v. Caryl, 3 Parker C. R. 320. 
 
 *Xellisv. X. Y. Central!!. Co., .30 X. Y. 505; White v. Chesapeake, etc., Ry. Co., 
 26 W. Va. 800. 
 
 5 Hillard v. Goold, .34 X^". H. 230; State v. Goold, 53 Me. 279; St. Louis R. v. South, 
 43 III. 176; Crocker \-. X^'ew London, etc., R. R. Co., 24 Conn. 249; Bordeaux v. Erie 
 Ry. Co., 8 Hmi, 579; O'Brien v. X". Y. C. & H. R. R. R. Co., 80 X'. Y. 230. 
 
 6 Porter v. X^. Y. Central R. R. Co., .34 Barb. 353; Chicago R. v. Parks, 18 Bl. 460; 
 Jeffersonville R. v. Rogers, 28 Ind. 1 ; 30 X. Y. 505 ; Iowa v. Chovin, 7 Iowa, 204 ; 
 St. Louis, etc., R. R. Co. v. South, 43 111. 176; Chicago, etc., R. R. Co. v. Flagg, 43 
 111. 364; Jeffersonville R. R. Co. v. Rogers, 28 Ind. 1; Indianapolis, etc., R. R. Co. v. 
 Einard, 46 Ind. 293; Du Laiu-ans v. St. Paul, etc., R. R. Co., 15 Minn. 49; Swan 
 T. Manchester, etc., R. R., 1.32 Mass. 111!. See Bordeaux v. Erie Ry. Co., 8 Hun, 579. 
 
Caeeiees op Passengees. 565 
 
 § 694. The regulations of a railway carrier must be fairly and rea- 
 sonably enforced. Having a right to exclude a man from a car, for re- 
 fusing to show his ticket or pay his fare, or for disorderly conduct, the 
 company must answer for the manner in which this right is exercised. 
 The law does not permit the use of any more force than is necessary, 
 and it holds the company liable as principal for the use of any excess 
 of force by its agent, the conductor, beyond what is necessary and 
 proper to accomplish the removal. Without holding the company Uable 
 for the agent's willful and malicious violence outside of the scope of 
 his employment, it does hold them answerable for the force used by 
 their agent actuig under their instructions, in the line of his duty; both 
 when he exceeds his duty through an error of fact, and when he over- 
 does it through zeal and impetuosity of temper.^ 
 
 When the conductor acts in good faith, enforcing a reasonable and 
 lawful regulation, under circumstances which do not justify his act in 
 expelling a passenger from a car, the company is not liable in punitive 
 damages. The rule of damages is the same, when the action is brought 
 against the company, as it is when brought against a natural person or 
 -the agent himself.^ The rule was so apphed on the Hudson River Rail- 
 road, on this statement of facts : The plaintiff purchased a ticket at 
 Sing Sing for Rhinebeck, and went on board of a train going no farther 
 north than Poughkeepsie ; after the train passed Peekskill, the plauitiff 
 on the conductor's call for tickets surrendered his, receiving back no 
 check or voucher showing his right to a passage upon any train of the 
 road, and requesting none ; upon the arrival of the train at Pough- 
 keepsie, where it stopped, the plaintiff got out and waited for another 
 train going north and stopping at Rhinebeck ; the plaintiff then en- 
 tered the car, and when called upon for his ticket, told the conductor 
 that his ticket had been taken up by the other conductor, which was 
 confirmed by some of his fellow passengers : the conductor then told 
 the plaintiff that it was his duty to obtain a ticket or collect the fare, 
 and that the other conductor would make it right with him ; plaintiff 
 refused to pay, and was ejected from the caf, at a regular station. 
 
 1 Higgins V. Watervliet T. & E. Co., 46 N. T. 23. Here tlie conductor ejected the 
 plaintiff from a car as a disorderly person, and it was found on the trial that the 
 plaintiff was not in fact disorderly, and the company was held liable. In Jackson v. 
 Second Avenue K. E. Co., 47 N. T. 474, the company was held liable for excessive 
 force used with some temper. See also Sandford v. Eighth Ave. E. Co., 23 X. T. 343; 
 Seymourv. Greenwood, 7 H. & K. 356; Coleman v. N. T. & N. H. E., 106 Mass. 160 ; 
 Chicago, etc., E. E. Co. v. BUls, 104 Ind. 13; Chicago, etc., Ey. Co. v. Barrett, 16 
 111. App. 17; Peck v. N. T. C. & H. B. E. E. Co., 70 1^". T. 587, 591. 
 
 2 Hamilton v. Third Ave. E. Co., 53 N. T. 25; Townsend v. N. Y. C. & Hudson 
 Elver E. Co., 56 N. T. 295. 
 
566 Law of Bailments. 
 
 Hereupon the court ruled that the regulation calling for a ticket, check 
 or fare from each passenger, under the penalty of being expelled from 
 the conveyance, was in itself reasonable ; that the negligence of the 
 first conductor in taking up the ticket, without giving the plaintiff a 
 check, was wrongful and inexcusable, so that the road was liable for 
 the act of ejecting the plaintiff from the car ; and further, that the 
 conductor, acting as he believed in the performance of his duty, in ex- 
 pelling the plaintiff from tjie car, could not be held liable in punitive 
 damages ; '■ and that the company, the principal, could not be held liable 
 under a rule any more severe.^ The court further holds that the wrong- 
 ful taking of a ticket from a passenger, as in this case, does not justify 
 the passenger in asserting his right to a passage on another train by 
 force. For the same reason the carrier cannot use force to detain a 
 passenger as he is about to leave a boat, more than a reasonable time 
 to inquire into the truth of his allegation regarding the loss of his 
 ticket.'' 
 
 § 695. It is the duty of common carriers of passengers to keep their 
 engagements with the public in receiving passengers and in starting 
 their coaches, boats or trains on time.* It is also their duty to supply 
 them with the usual accommodations and board, where the fare covers 
 both the passage and board. ^ Receiving passengers on board of a rail- 
 road train, it is the carrier's duty to furnish them with room in a car, 
 and seats, so as to enable them to ride in the usual manner ; it is the 
 conductor's business to enforce the rules of the road and clear the seats 
 that are improperly occupied, for the use of passengers who are standing 
 within the car or upon the platform.' 
 
 Those who secure a passage in a stage coach, on a steamboat, in a 
 palace or sleeping car, stipulate for a seat, berth or state-room, as one 
 does for a reserved seat at a concert. There is nothing to interfere with 
 the freedom of the parties in making the contract.' Passengers entering 
 an ordinary car are allowed to choose their seats for themselves ; and 
 
 1 Hamilton v. Third Avenue R. Co., .53 N. Y. 25. 
 
 2 Townsend v. N. T. Cen. & H. Paver R. Co., 56 N. T. 295. 
 ' Standish v.Narragansett Steamship Co., Ill Mass. 512. 
 
 4Heirn v. McCaughan, :'!2 Jlissis. 17; Whitsell v. Crane, 8 Watts & Serg. 36!); 
 Denton v. Great Northern E., 5 Ellis & B. 860; Sears v. Eastern E., 14 Allen (Mass.), 
 433. 
 
 ' Adderly v. Cookson, 2 Camibp. Vi ; Siordct v. Brodie, 3 Campb. 253. 
 
 'Willis V. Long Island E. Co., .32 Barb. :!I)S; S. C. .34 N. Y. 6T0. A sleeping c.ir 
 company will be ln^ld liable for excluding a passenger from a berth assigned him and 
 for which he has offered to pay. Nevin v. Pullman Palace Car Co., 106 111. 222. 
 
 ' Long V. Home, 1 Carr. & P. 610; Deevort v. Loomer, 21 Conn. 245; Galena E. \. 
 Tarwood, 15 111. 4()S. 
 
CAEErEKS OF Passengers. 567 
 
 this choice is tacitly respected by the carrier and by the trayeUng pub- 
 lic. Has the carrier a right to make a regulation requiring negroes to 
 sit by themselves at one end of the car ? Or excluding them from the 
 cabin of a steamboat ? Regulations of this kind have been held valid 
 in States where the colored population is relatively small ; on the ground 
 that it is the duty of the carrier to guard and secure the comfort and 
 convenience of the community at large, rather than that of individuals.^ 
 The decisions quietly assume that the comfort and convenience of the 
 community are in some way dependent upon the regulation. The fact 
 thus assumed is not recognized in this State, where the law accords to 
 every citizen the full and equal enjoyment of any accommodation, ad- 
 vantage, facility or privilege furnished by common carriers on land or 
 water ; and declares expressly that a citizen shall not by reason of race, 
 color or previous condition of servitude be excluded from public houses, 
 theaters, common schools, public institutions of learning or cemeteries.'^ 
 And now, under the act of Congress, all persons within the jurisdiction 
 of the United States are entitled to the full and equal enjoyment of the 
 accommodations, advantages, facilities and privileges of inns, public con- 
 veyances on land or water, theaters and other places of public amuse- 
 ment; subject only to the conditions and limitations established by law, 
 and applicable alike to citizens of every race and color, regardless of 
 any previous condition of servitude.^ 
 
 § 696. A railroad carrier is answerable for the safe and proper con- 
 struction of its depots, stations, platforms and the approaches used in 
 receiving or landing passengers.* It is bound to keep them in a suitable 
 
 1 Day V. Owen, 5 Mich. 520; West Chester R. v. Miles, 55 Penn. St. 209. See Tur- 
 ner V. North Beach E., 34 Cal. 594; Pleasants v. North Beach R., 34 Cal. 586; Tarbell 
 T. Central Pacific R., 34 Cal. 616. See Chicago & N. R. Co. v. Williams, 55 111. 185. 
 
 2 New York Laws of 1873, Chap. 186, p. ; 303 Laws of 1881, Chap. 400; N. T. Penal 
 Code, § 383. 
 
 * The statute is broader and also less broad than that of New Tork; it applies to " all 
 persons," and it does not apply to common schools and institutions of learning. See 
 Civil Rights Bill, Chapter 114, passed at Second Session Forty-third Congress, and 
 approved March 1, 1875. Senator Sumner died in March, 1874, bequeathing his Civil 
 Eights Bill to the care of his friends, and his will took effect according to his intent. 
 
 A railroad corporation may make a regulation setting apart one car of a train for 
 females traveling alone or without male relatives or friends. Peck v. N. T. C. & 11. 
 E. R. R. Co., 70 N. T. 587. 
 
 4 Jeffersonville, etc., R. R. v. Riley, 39 Ind. 569; McDonald v. Chicago & N. W. R. 
 R., 26 Iowa, 124; S. C. 29 Iowa, 170; Tobin v. P., S. & P. R. E. Co., 59 Maine, 183; 
 Knight V. P., S. & P. E. E., 56 Maine, 234; McElroy v. Nashua & Lowell E. Co., 4 
 Cush. 400; Penn. E. Co. v. Henderson, 51 Penn. St. 315. 
 
 It is the duty of the company to keep the sidewalks leading from its depot to a 
 public street in good repair; Bateman v. N. Y. C. & H. E. E. E. Co., 47 Hun, 429; 
 
568 Law op Bailments. 
 
 and safe condition for the accommodation of passengers ; and properlj 
 lighted ia the night time, so as to render the entrance and the egress 
 convenient and safe.^ Tlie same legal duty rests upon carriers l>y -^^'ater, 
 in respect to the appliances used in receiving or landing passengers.- 
 Parties waiting in a station to take the cars, or at a landing to take the 
 boat, already stand in the relation of passengers, and are entitled to 
 protection in that capacity.^ 
 
 § 697. Kegulations by the carrier determining his mode of doing busi- 
 ness and his manner of receiving and carrying passengers are valid ; 
 as that passengers shall ride on passenger trains, and in the cars pro- 
 vided for them ; and not on the engine, or in a caboose car attached to 
 a freight train. ■* It is the right of the railroad company to separate the 
 business of carrying freight from the business of carrying passengers ; 
 and they may enforce the rule by refusing to receive passengers onboard 
 of a freight train, or within a freight car attached to a passenger train. 
 We find no dissent from this proposition. Hence a trespasser, one who 
 intrudes upon a car not used for the conveyance of passengers, and re- 
 mains there in violation of the rules of the road, and is in no way recog- 
 nized by the company as a passenger, cannot claim protection on the 
 theory of an implied contract.^ The railroad company owe him the same 
 duty which they owe to a stranger, and no other or different. He can- 
 not demand protection as a passenger, not having been received in that 
 capacity ; ' and he may reasonably insist upon that degree of care which 
 is due from one man to another, independent of any relation of contract 
 
 and to provide for the passenger a safe passage to the train he expects to talie, and to 
 take reasonable care that he sliall not wliile on the premises be exposed to any un- 
 necessary danger, or to one of whicli it is aware. Carpenter v. Boston A- Albany E. 
 K. Co., 07 N. T. 494. It should not provide a station platform higher than the car 
 steps, nor should it require passengers to board a train from a baggage car. Turner t. 
 Vicksburg, etc., K. R. Co., 37 La. Ann. fUS. 
 
 1 March v. Concord R. Cor., 2!) X. H. II; ?ilartin v. Great X. Railway Co., 30 En^. 
 Law & Eq. 473; Beard v. Ct. & P. liivr-rs R. R. Co., 48 Yt. 101 ; Xicholson v. L. & Y. 
 Railway Co., 3 Hurl. & X. -534; Hurlbert v. X Y. Central R. R. Co., 40 X. Y. 14"j; 
 Reynolds v. Texas & Pacific Ry. Co., 37 La. Ann. 604; Fordyce v. Jlerrill, 49 Ark. 
 277. 
 
 2 John V. Bacon, L. R. .5 C. P. 437; Crocheron v. Ferry Co., 1 X. Y. Sup. Ct. 44(1; 
 ante, §§ .50.5, 507. 
 
 " Gordon V. Grand St. & X. R. R. Co., 40 Barb. .54r,; 4 Lans. I'.is; Packet Co. >. 
 Clough, 20 Wall. 528; Snow v. Fitchburg R. R. Co., 136 Mass. 552; Carpenter s. 
 Boston & Albany R. R. Co., 97 N. Y. 494. 
 
 * Robertson v. X. Y. & Erie R. R. Co., 22 Barb. 91; Eaton v. Delaware, L. * W. 
 R. R. Co., 57 X. Y. 382; Spooner v. Brooklyn City R. R. Co., ,36 Barb. 217. 
 
 5 Xicholson v. Erie R. Co., 41 X. Y. 525. 
 
 6 Lugo V. Xewbold, 9 Exch. 302; Bissell v. Mich. Southern A X. I. Co., 22 X. Y. 
 250, 280, 306. 
 
Carriers op Passengers. 569 
 
 ■subsisting between them ; care not to injure him by any affirmative 
 act, or by any gross negligence.' 
 
 The relation of contract arises where a person openly takes a seat in 
 a car used for conveying passengers. Being a passenger, he does not 
 forfeit his right to protection by going into and taking a seat in the 
 baggage car, with the conductor's assent.'' The rule is different where 
 a person is received to ride in the baggage car, the passenger car being 
 full, and he goes upon another car and is injured.^ 
 
 Admitting the right of the company to refuse to carry passengers in 
 the caboose car attached to a freight train, the law also permits them to 
 receive and carry passengers in that conveyance. And if they so receive 
 a person, and take fare from him, or recognize his ticket as evidence of 
 his right to a passage, they assume the same liability to carry him 
 safely as upon an ordinary passenger train.* On the other hand, when 
 the printed regulations of the company prohibit the carrying of pas- 
 sengers in that car, and no fare is claimed or paid or expected, the con- 
 ductor cannot render the railroad liable as a passenger carrier of per- 
 sons received by him into that car.^ 
 
 § 698. The liability of the carrier does not necessarily rest upon the 
 basis of a contract. The railway company is liable as a carrier to any 
 person who is lawfully upon the train ; and it has been questioned 
 whether the company can avail itself of a rule adoxated for the govern- 
 ment of its agents and servants prohibiting the carrying of passengers 
 in a saloon car, attached to a freight train, where the conductor receives 
 
 1 Nicholson v. Erie E. Co., 41 N. T. 52.5; Hounsell v. Smyth, 97 Eng. Com. Lai?', 
 *731; DriscoU v. Newark & E. Cement Co., .37 N. Y. 638 ; Southcote v. Stanley, 
 1 Hurl. & N. 246; Balch v. Smith, 7 Hurl. & IST. 732; Corrigan v. Union Sugar E., 98 
 Mass. 577; St. Peter v. Denison, 58 N. Y. 416; Bush v. Brainard, 1 Cowen, 78; St. 
 Joseph & W. E. E. Co. v. Wieeler, 35 Kansas, 187. 
 
 ^ Carroll v. N. T. & N. H. E. E. Co., 1 Duer, 571; Lackawanna E. v. Chenewith, 
 52 Penn. St. 382. A passenger has no remedy for injuries received while voluntarily 
 and umiecessarily riding in a haggage car without the knowledge of the conductor, if 
 the injuries would not have been received had he been in a passenger car. Kentucky 
 Cent. E. E. Co. v. Thomas, Admr., 79 Ky. 160; Houston &T. C. E. E. Co., 55 Texas, 
 88. The rule is the same where the passenger voluntarily rides in a baggage car by 
 permission of the conductor, but in violation of the rules of the road conspicuously 
 posted in that car. Pennsylvania E. E. Co. v. Langdon, 92 Pa. St. 21. 
 
 3 Galena E. v. Yarwood, 15 111. 468. 
 
 ^Edgerton v. N. Y. & Harlem E. E. Co., 35 Barb. 193; S. C. 39 N. Y. 227; Dunn 
 V. Grand Trunk E. Co., 58 Me. 187; International & Great Northern E. E. Co. v. 
 Irvine, 64 Texas, 529; New York, etc., E. E. Co. v. Doane, 115 Ind. 435; Quacken- 
 bush V. Chicago, etc., E. E. Co., 73 Iowa, 458. 
 
 6 Eaton V. Delaware, L. & W. E. Co., 57 N. Y. 382; 22 Barb. 91; Contra, Dunn v. 
 Grand Trunk E. Co., 58 Maine, 1S7. See McGee v. Missouri Pacific Ey. Co., 92 Mo. 
 208; Perkins v. Chicago, etc., E. E. Co., 60 Miss. 726. 
 
570 Law of Bailments. 
 
 him into that car, and he has no notice of the rule.^ The pubUc natu- 
 rally assume that the agent of a road is acting within the Ime of his 
 authority, and in conformity with the by-laws of the corporation. But 
 passing this question, it appears to be well settled that a carrier of free 
 passengers is bound for the same dihgence and skill as he is when 
 carrying passengers for hire ; ^ and that a person riding under a con- 
 tract between other parties, like a mail agent or an express messenger, 
 is entitled to tjie same protection as a passenger paying his own fare ; * 
 and further, that an infant child, paying no fare under the custom of a 
 road, is entitled to the same equal and just protection.* 
 
 II. Payment of Faee. 
 
 § 699. A carrier of passengers, like a common carrier of goods, has a 
 right to demand payment of his hire in advance, as a condition pre- 
 cedent to his receiving a person as a passenger. Passage money, or fare, 
 and freight are governed by the same rules. ^ Where a person takes 
 his place in a stage coach, and pays at the time only a part of the fare 
 as a deposit, the proprietor is at liberty to fill up his place with another 
 passenger, provided the first is not at the inn ready when the coach sets 
 off." But where at the time of taking his place he pays the whole fare, 
 the proprietor cannot dispose of his seat to another ; for the passenger 
 may take it at any stage of the journey he thinks proper, at the place 
 most convenient to him. Having permitted a passenger to get into the 
 stage at the usual hour of departure, and have his luggage fastened on, 
 the owner cannot, on being tendered his hire, refuse to go the journey ; 
 
 1 Dunn V. Grand Trunk E. Co., 58 Maine, 1S7; Lackawanna & B. E. Co. v. Chene- 
 with, 52 Penn. St. 3S2; McGee v. Missouri Pacific Ey. Co., 92 Mo. 20S. 
 
 2 Perkins v. N. T. Central E. Co., 24 N. T. 196; Pliiladelpliia & E. E. Co. v. Derby, 
 14 How. TJ.. S. 468; Steamboat Xew World v. King, 16 How. U. S. 477; Doran v. . 
 East Eiver Ferry Co., 3 Lansing, 105; Gill v. Middleton, 105 Mass. 479; Wilton v. 
 Middlesex E. E., 107 Mass. 108; Wagner v. Missouri Pacific Ey. Co., 97 Mo. 512; 
 Louisville, N. A. & C. E. E. Co. v. Taylor, 120 Ind. 126. 
 
 3 Pennsylvania Co. v. Woodworth, 26 Oliio St. 585; Nolton v. Western E. Cor., 13 
 N". T. 444; Gulf, C. & S. F. E. E. Co. v. Wilson, 7!) Texas, .371; Blair v. Erie Ey. Co., 
 (H! N". T. 313; Seybolt v. N. T., L. E. & W. E. E. Co., 95 N. y. 562; Brewer v. X. Y., 
 L. E. & W. E. E. Co., 124 X. Y. .59. See Union Pacific E. Co. n. Nichols, 12 Ameri- 
 can R. 475, where the agent took in a man to teach him the business, and the con- 
 ductor permitted him to remain, supposing him to be an agent of the express com- 
 pany, and he was injured. 
 
 * Austin V. Great W. E. E., Law Rep. 2 Q. B. 442. The child in this case should 
 have paid half fare under the statute ; and nothing was paid or demanded. And see 
 Metropolitan Street Ey. Co. v. Moore, S3 Ga. 453. 
 
 ^Moffatt V. East India Co., 10 East, 408; Watson v. Duykinck, 3 John. E. 335; 
 Briggs V. Austin, 3 Pick. 20; 1 Peters' Adm. E. 126, 206; ante, § 639. 
 
 ° Ker V. Mountain, 1 Esp. 27. 
 
Cabeeees of Passengees. 571 
 
 because this is sucli an inception of the contract that he is bound to go 
 through with it.^ 
 
 Under the general custom, a passenger's fare covers and includes a 
 compensation for the conveyance of his baggage. And hence where 
 there is no special usage or regulation, charging freight or luggage 
 exceeding a certain weight, payment of the usual fare entitles a pas- 
 senger to carry with him his baggage ; includmg wearing apparel and 
 aU such articles of convenience and comfort as may be reasonably car- 
 ried in that manner, considering the nature of the journey .^ A gold 
 watch or an opera glass may be carried as baggage.^ 
 
 § 700. Railroad carriers of passengers have the same right to demand 
 payment of the fare in advance as other carriers. They may refuse to 
 allow a passenger to get on board without a ticket ; and they may in 
 this State put him off at a regular station or near some dwelling-house, 
 on his refusing to pay his fare ; ^ using all proper care not to injure him 
 in doing so.* 
 
 After a passenger has refused to pay his fare and the train has been, 
 stopped for the purpose of putting him off, a subsequent offer to pay 
 does not give him a right to remain, does not take from the conductor 
 the right to exclude him from the car.° So having been put off the train 
 for that cause, he does not gain the right to re-enter immediately, on 
 tendering the fare or a valid ticket.' He forfeits his right to continue 
 his journey on the train. 
 
 May a railroad company demand an increased rate of fare, on account 
 of a passenger's neglect to procure his ticket before entering the car ? 
 Our courts have hesitated to hold the affirmative of this proposition, 
 couched in this form ; and yet there is good authority upholding the 
 right of the company to adopt the ticket system and allow passengers 
 ' purchasing tickets to ride at a less rate than that charged to those pay- 
 
 1 Jeremy on Car. 23; 4 Esp. 260; Buffit v. Troy & Boston R. E. Co., 36 Barb. 420; 
 S. C. 40 N. Y. 168; Frink v. Schroyer, 18 Dl. 416. 
 
 2 Pardee v. Drew, 25 Wend. 459; Hawkins v. Hoffman, 6 Hill, 586; Merrill v. Grin- 
 nell, 30 N. T. 594; 42 IST. Y. 326; ante, §§ 502, 569-571, 574-5'76; Jones v. Norwicli & 
 S'. Y. Transp. Co., 50 Barb. 193. 
 
 ' Toledo, Wabash, etc., E. E. v. Hammond, 33 Ind. 379; American C. Co. v. Cross, 
 8 Bush (Ky.), 472. 
 
 * People V. Jillson, 3 Park. Cr. E. 234; Laws of 1890, Chap. 565, § 40. 
 
 « Sanford v. Eighth Ave. E. Co., 23 If. Y. .343. 
 
 « People V. Jillson, supra; Hibbard v. N. Y. & Erie E. Co., 15 N. Y. 455, 461; 
 Cincinnati, etc., E. E. Co. v. Skillman, 39 Ohio St. 444; Hoffbauer v. D. & N. W. E. 
 R. Co., 52 Iowa, 342; O'Brien v. I^". Y. C. & H. E. E. E. Co., 80 N. Y. 236; Pease v. 
 D. L. & W. E. E. Co., 101 IT. Y. 367. 
 
 T State V. Campbell, 32 N. J. 309; O'Brien v. B. & W. E. E., 15 Gray, 20. 
 
572 Law of Bailments. 
 
 ing in the cars ; ^ on condition thie company keep their offtces open for 
 the sale of tickets for a reasonable time before the train leaves.'' The 
 statute of New York adopts the principle, with the quahflcation. It 
 also imposes a penalty upon the road for taking a greater rate of fare 
 than that allowed by law.^ 
 
 § 701. When a passenger does not pay his fare in advance, the carrier 
 has a lien therefor upon the baggage entrusted to him ; and may detain 
 the same as a security for its payment. When he waives his right to 
 payment in advance, he is presumed to rely upon the lien given him by 
 law, or upon the personal responsibility of his passenger, to secure his 
 reasonable hire. He cannot detain his passenger therefor ; * and he 
 cannot take things from his possession to secure payment of Ms 
 demand.^ 
 
 The carrier's lien does not, under the common law, involve or carry 
 with it a power to sell or satisfy his demand. It is a naked right of 
 detention which cannot be made available to liquidate his charge, with- 
 out a legal proceedmg, in the nature of a foreclosure in equity." And 
 during the time he detains goods to enforce his lieu, he is not allowed 
 to charge for keeping them.' 
 
 We have seen that an innkeeper has a lien upon the goods entrusted 
 to him by his guest, though they be the property of another person ; and 
 "it has been urged that a carrier stands in the same relation to his pas- 
 senger, and should therefore have a co-extensive lien.' The analogy is 
 very strong ; and yet the better opinion is that a carrier's lien for freight 
 arises out of a contract by the owner for the conveyance of the goods, 
 and that it cannot be enforced against the owner where the goods are 
 
 1 St. Louis r,. V. Soutli, 43 111. 170; State v. Goold, 53 Maine, 279; Hilliard v. Goold, 
 34 X. n. 230; Peoi^le v. Jillson, supra; Crocker v. Xew London E., 24 Conn. 249. 
 
 2 Porter v. X. Y. Central I!. E. Co., 34 Barb. 353; Xcllis v. X. T. Central E. Co., 
 .30 X. T. oOo; 2S Ind. 1; Du Laurans v. St. Paul & Pacific E. E. Co., 2 American E. 
 102, note 108; .Jeffersonville E. E. Co. v. Eogers, 38 Ind. 116. See Bordeaux v. Erie 
 Ey. Co., 8 Hun, 570. 
 
 8 Cliase V. X. T. Central E., 26 X. T. 523; 46 X. Y. 044; Lewis v. X. Y. Central 
 E., 49 Barb. 3.30. 
 
 * Wolf V. Summers, 2 Campb. 631 ; Sunbolf v. Alford, .3 Jlees. & Welsb. 14S. 
 
 ^ Eamsden v. Boston & Albany E. E. Co., 104 Mass. 117; Lynch v. Metropolitan 
 Elevated Ey. Co., 90 X. Y. 77. 
 
 5 Saltus V. Everett, 20 Wend. 207; Briggs v. Boston E., 6 Allen, 246; Hunt v. Has- 
 kell, 24 Maine, 339; Staples v. Bradley, 23 Conn. 107. A mortgagee or pledgee may 
 bring an action in equity demanding a sale of the property. Brigg v. Oliver, 68 X. T. 
 330, 339. 
 
 ' Somes T. Bi-itish Empire Shipping Co., 3 H. L. Cas. 338. 
 
 8 Grinnell i. Cook, 3 Hill, 490; York v. Grenaugh, 2 Ld. Eaym. 807; Johnson v. 
 Hill, 3 Stark. E. 172. 
 
Cabeiees of Passengees. 573 
 
 carried at the request of a bailee or of a party acquiring tlie possession 
 of them by fraud. ^ 
 
 III. The Conteact. 
 
 § 702. We give but-little attention to those contracts which are most 
 frequently made, those which result from a general order given, or from 
 some action taken under a custom or course of business. A traveler 
 buys a railroad ticket, without much considering the effect of his pur- 
 chase. He applies to an agent of the company for a ticket to a given 
 place on the line of the road ; he pays the fare and goes on board of the 
 right train, with his ticket as a voucher or token of his right to a passage. 
 However general or few the words used, the contract is well defined ; 
 it binds the carrier to convey the passenger with his baggage to the 
 place indicated on his ticket. The contract is the same where a pas- 
 senger takes passage on a steamboat.^ The carrier also engages to con- 
 vey the passenger with all reasonable diligence to the place of his 
 destination ; he engages, under ordinary circumstances, to convey the 
 passenger within the advertised time.^ 
 
 For a breach of the carrier's engagement to make the connections or 
 to convey his passenger within the time specified in the published time- 
 table, the law allows the injured party to recover the direct and natural 
 damages resulting from the delay. It does not allow him to recover 
 remote or speculative damages ; * as in other cases, it limits the recov- 
 ery to such damages as might be reasonably expected to result from 
 the delay.* 
 
 When a passenger is seriously injured by the delay, he is entitled to 
 recover the damages thereby sustained ; and the railroad carrier cannot 
 escape liabiUty by showing that the delay arose from the willful act of 
 the conductor.^ 
 
 1 Gilson V. Gwinn, 107 Mass. 126; Bassett v. SpofCord, 43 N. Y. 387; Fisk v. l^ew- 
 berry, 1 Doug. Mich. R. 1; Buskirk v. Purington, 2 Hall, 561, 569. 
 
 2 Jones V. Norwich & N. Y. Transp. Co., 50 Barb. 193; 45 N. Y. 184. 
 
 s Denton v. Great Northern E. Co., 5 El. & Bl. 860; Hamlin v. Great Northern E. 
 Co., 1 H. & N. 408. The contract is to be established as a matter of fact. Hurst v. 
 Great Western R. Co., 19 C. B. N. S., 310. 
 
 4 Hamlin v. Great Northern E. Co., 1 H. & N. 408; Benson v. N. J. R. & Tr. Co., 
 9 Bosw. 412; Woodyear v. Great Western R. Co., L. E. 2 C. P. 318; Hobbs v. London 
 & Southwestern E. Co., L. R. 10 Q. B. Ill; Denton v. Great Northern T.. Co., 5 El. & 
 Bl. 860; contract evidenced by an excursion ticket good for fourteen days; Great 
 Northern E. Co. v. Hawcroft, 21 L. .1. Q. B. 178. 
 
 5 Hadley v. Baxendale, 9 Exch. 341; Home v. Midland E. Co., L. E. 8 C. P. 131, 
 140. 
 
 6 Weed V. Panama R. Co., 17 N. Y. 362; 20 N. Y. 48; Meyer v. Second Ave. E. 
 Co., 8 Bosw. 305; Shea v. Sixth Avenue E. Co., 62 N. Y. 180. 
 
574 Law of Bailments. 
 
 § 703. When in England two or more railroad companies unite to form 
 an extended line, on which passengers are booked through, the contract 
 is between the passenger and the company issuing the ticket.^ And our 
 rule is the same where the company issuing the ticket contracts for 
 the entire distance;^ and the contract is fairly established by all the 
 facts and circumstances.' 
 
 The contract is with the connected roads as joint contractors, when 
 they are jointly concerned in the business of carrying passengers and 
 there is a community of interest between them in the sale of tickets ; * 
 as where the tickets are sold by an agent acting for both roads, and the 
 transportation is effected by the united agency of the roads, thus prac- 
 tically consolidated in the business.^ 
 
 When one of several connecting roads sells the tickets of the differ- 
 ent roads, with authority from each, printed on one slip of paper and 
 capable of being readily detached, on an agreement dividing the pro- 
 ceeds between the roads rateably ; each road makes a contract with 
 the passenger covering its own line. The company selling the ticket 
 over the connecting road acts as an agent ; and each road is liable 
 to the passenger for any failure in duty on its line ^—liable on the 
 theory of contract. The same principles apply to the contract for the 
 conveyance of passengers which apply to contracts for the transporta- 
 tion of goods.^ 
 
 § 70-1. The law of the State where a contract is made and is to be 
 
 1 Mytton V. Midland U. Co., 4 H. & X. 61-5; Coxon v. Great Western R. Co., 5 H. 
 & N". 274; Bristol, etc., E. Co. v. Collins, 7 H. L. Cas. 194. 
 
 2 Weed V. Saratoga & .S. R. Co., 19 Wend. 5:34; Burtis v. BuflCalo A- State Line R. Co., 
 24 X. T. 26'.); Hart v. Rensselaer & S. E. Co., 8 X. T. 37; 29 Barb. 35; 53 N. T. 
 363, o7U; 111. Central 1!. Co. v. Copeland, 24 111. o:;2; Little v. Dusenberry, 46 N. J. 
 L. 614. See Laws of 1892, Chap. (170, § 48. 
 
 8 Williams v. Vanderbilt, 28 N. Y. 217; Van Buskirk ^. Roberts, 31 X. Y. 661; 
 Quimby v. Vanderbilt, 17 N. Y. 306; 45 N. Y. 184, 189. 
 
 * Wylde V. Northern E. E. Co. of N. J., 03 X. Y. 156; Hart v. Eensselaer& S. E. 
 Co., 8X. Y. 37. 
 
 ^ An appointment by several roads of a common agent to sell coupon tickets over 
 their roads does not make them partners. Sprague v. Smitli, 29 Vt. 421; Harton v. 
 Eastern E., 114 Mass. 44; Straiton v. X. Y. E., 2 E. D. Smith, 184. And while it is 
 quite feasible for these companies to unite their business in such a manner as to create 
 a partnership, wo do not often find them doing so. Seo Railioad Co. v. Harris, !2 
 Wall, (i."), 8."); Xajac v. Boston R., 7 Allen, 329; Carter v. Pec'c, 4 Sncc 1, 293; Xorthera 
 Central Ey. Co v. Selioll, 10 Md. 33,1 ; 111. Central E. v. Copeland, 24 111. 332; i7N. T. 
 306; 29 Barb. 35; Glaser v. X. Y. E., 30 Barb. 557. 
 
 " Milnor V. X. Y. & X. II. E. Co., 53 X'. Y. 303; i:es',!ei- t. X'". Y. C. & H. E. E. Co., 
 61 N. Y. 538; S. C. 7 Lans. 62; Poole v. D. L. & W. E. E. Co., 35 Hun, 29; Isaacson 
 V. N. Y. C. & H. E. E. R. Co., 94 IST. Y. 278. 
 
 ' Ante, §§ 572, 577, 578. 
 
Caekiees of Passengers. 575 
 
 performed determines its validity ; and so wliere a railroad in this 
 State contracts to convey a passenger from one place to another within 
 its jurisdiction, with a limitation upon its Uability allowed by our laws, 
 the contract is to be enforced according to its legal effect here. E. (/., 
 Ohio, which does not uphold a contract made in that State exempting 
 a carrier from liability for the negligence of its agents and servants, 
 will enforce a like contract made here by the Erie Railroad to be per- 
 formed within this State.^ The rule is still broader : the contract is to 
 be construed and mterpreted according to the laws of the State where 
 it is made, unless it appears from its terms to have been entered into 
 with a view to the laws of some other State ; as where it is to be sub- 
 stantially performed in another State. The mere fact that a passenger 
 on the road — on the Erie, for example — will be occasionally carried over 
 the State line, in the execution of a contract of transportation, does not 
 prevent its enforcement according to the law of this State, where it is 
 made. And hence when a suit is brought here on the contract, for 
 damages to a passenger caused by the negligence of the company at a 
 point where the road bends into Pennsylvania, the law of this State 
 prescribes the measure of the recovery.'' 
 
 A railroad corporation organized in one State, and extending its line 
 into another and transacting business there by its permission, does so 
 subject to the laws of that State. It is not permitted to act under, and 
 afterwards reject, those laws, as its interests may dictate.' 
 
 Under a contract for services, the law of the place where they are 
 rendered governs, and controls its legal effect.* 
 
 The statute law of a State has no extra-territorial operation ; and so 
 the statute giving an action for damages resulting from a death caused 
 by culpable negligence, operates only within the State.^ As the cause 
 of action is created by the statute, it cannot arise outside of the jurisdic- 
 tion enacting the statute. In perfect harmony with this principle, our 
 courts give effect to the statute on navigable waters, which are within 
 
 iKnowltonv. Erie Railway Co., 19 Ohio St. 260. See Dike v. Erie Ey. Co., 45 
 K. Y. 113; Lyons v. Erie Ey. Co., 57 N. Y. 489; Curtis v. D. L. & W. E. E. Co., 74 
 N. Y. 116; Fauliiner v. Hart, 82 N. Y. 413. 
 
 2 Dike V. Erie R., 45 ^^. Y. 113; Curtis v. D. L. & W. E. E. Co., 74 X. Y. 120. 
 
 8 Milnor v. N. Y. & N. H. E. Co., 53 N. Y. 363. 
 
 1 Mullin V. Hicks, 49 Barb. 250; Waldron v. Eitcliings, 3 Daly, 288; Curtis v. Lea- 
 Titt, 15 X. Y. 9, 91; 33 N". Y. 615. 
 
 5 WMtford Y. Panama Eailroad Co., 3 Bosw. 67; S. C. 23 K. Y. 465. The death 
 occurred on the Panama Eailroad, a corporation organized under the laws of^ew 
 York. 2 Keyes, 294; Eichardson v. N. Y. C. E. Co., 98 Mass. 85; Needham v. G. T. 
 E. Co., 38 Vt. 294; Woodward v. M. S. & ^. I. E. Co., 20 Ohio St. 121 ; Allen v. Pitts- 
 hurgh, etc., E. Co., 45 Md. 41; G. W. E. Co. v. Miller, 19 Mich. 305; Leonard v. 
 
576 Law of BAiLivrEjsrTS. 
 
 the boundaries of the State,^ and on the high seas, where a citizen meets 
 witli death through culpable negligence on board a vessel hailing from 
 and registered in a port within the State.^ 
 
 § 705. We have noticed in passing that in this State, and in some 
 others, a gratuitous passenger may by an express contract exempt a rail- 
 road company from liability for injuries arising from the negligence of 
 its agents and servants ; ' that a person riding on a drover's pass, issued 
 under a contract for the transportation of cattle, who cannot be reason- 
 ably regarded as a free passenger, may by an express contract relieve 
 the company from liability for injuries caused by the negligence of its 
 servants ; ^ and that a railroad carrier may, upon a sufficient considera- 
 tion, contract for exemption from liability for losses arising from its 
 own negligence.^ 
 
 The carrier is permitted to stipulate for such exemptions from liability 
 as the law regards just and reasonable ; and the law does not regard it 
 as just and reasonable to permit him to evade the liability fairly involved 
 and assumed by him under the contract. An exemption from losses by 
 fire is reasonable, unless the loss occurs through the negligence of the 
 carrier or of his agents employed in the business.^ 
 
 § 706. We have seen that a person may be a passenger lawfully on 
 a boat or in a car, where there is no contract subsisting between him 
 and the carrier ; and that he is not left without a remedy against the 
 carrier for his acts of negligence.'' The same is true where he takes 
 
 Columbia Steam Xav. Co., 84 N. Y. 48; Debevoise v. N. Y., L. E. & W. R. R. Co., 98 
 N. Y. -377; McCarthy v. Chicago, etc., R. R. Co., 18 Kansas, 46. 
 
 1 Mahler V. Norwicli & N. Y. Transp. Co., 45 Barb. 2-!0; reversed, S. C. 3.5 N". Y. 
 3.j2. The injury, causing death, resulted from a collision on Long Island Sound, near 
 Sands' Point. As to the territorial limits of the county of New York, see Orr v. City 
 of Brooklyn, 36 N". Y. 661 ; and as to the effect of an assignment of personal prop- 
 erty situate in another State, made here, see Van Buskirk v. Warren, 2 Keyes, 119. 
 
 2 McDonald t. Mallory, 77 N. Y. 546. 
 
 3 Wells V. N. Y. C. R. E. Co., 24 N. Y. 181; Ulrich v. N. Y. C. v. H. R. R. R. Co., 
 108 N. Y. 80; Quimby v. Boston & M. E. Co., 1.50 Mass. 365; Rice v. 111. Cent. R. E. 
 Co., 22 111. App. 643. 
 
 1 Perkins v. N. Y. Central R. Co., 24 X Y. 196; Bissell v. X. Y. Central E. Co., 25 
 N. Y. 442; Poucher v. K. Y. Central R. Co., 40 N. Y. 263. 
 
 5 Seybolt v. X". Y., L, E. & W. R. R. Co., 95 N". Y. 562, 573; Kenney v. X. Y. C. & 
 H. R. R. R. Co., 125 N". Y. 422. But the contract must be made with the person 
 carried or some one authorized to act in his behalf. Seybolt v. X. Y., L. E. ct W. li. 
 R. Co., 95N. Y. 562, 573; Porter v. X. Y., L. E. & W. R. R. Co., 59 Hun, 177. 
 
 ^ Hoadley V. Northern Transp. Co., 115 Mass. 304; Hill Manuf. Co. v. Providence 
 & N". Y. Steamship Co., 113 Mass. 495; as where goods are burned through the negli- 
 gence of a railroad carrier, employed by an express carrier, who has a stipulation for 
 exemption from liability for losses by fire. Bank of Kentucky v. Adams Ex. Co., 3 
 Otto, 174. ' Ante, § 698. 
 
Cabeiees op Passengers. 577 
 
 passage on a public conveyance under an illegal contract, or while act- 
 ing in violation of the law of the State. The carrier is not allowed to 
 interpose a moral set-off ; he is not allowed to excuse his own negligent 
 and tortious conduct, by alleging that the passenger was also and at the 
 same time in the act of violating some other law of the State ; %. e., trav- 
 eling on a Sunday.! Putting aside the contract leaves the carrier 
 under the obligations imposed upon him by the common law.^ 
 
 IV. GsNEEAii Liability. 
 
 § 707. The minor duties of the carrier of passengers grow out of, and 
 are deducible from, that general responsibility which binds him to carry 
 safely those whom he takes into his conveyance, as far as human fore- 
 sight and care will go ; that is, for the utmost care and diligence of very 
 cautious persons. The rule is less stringent than that which applies to 
 common carriers of goods. The carrier of property insures its safety ; 
 and the carrier of passengers does not insure their safety.' The mind 
 does not accept this proposition, without first acceptingthat element of 
 public policy which gave rise to, and still enforces, the strict liability im- 
 posed upon the common carrier of goods. If we eliminate this element 
 from that rule of liability, reason demands that a carrier of passengers 
 shall be held to a more strict rule of liability than a carrier of property. 
 
 Stated by itself, and considered afllrmatively, the rule is sufiiciently 
 strict ; the carrier of passengers engages that, so far as human care and 
 foresight can go, he will provide for their safe conveyance.^ The rule 
 requires of him the utmost foresight as to possible dangers, and the ut- 
 most prudence in guarding against them ; ^ and the rule is interpreted 
 with direct reference to the mode of conveyance employed by the carrier.'' 
 And although the same language will express the rule as applied to all 
 carriers of passengers, requiring of each the highest degree of foresight 
 and the utmost care and diligence of very cautious persons, the rule is 
 not satisfied by the use of the same degree of vigilance in the conduct 
 
 1 Carroll v. Staten Island E. Co., 58 N. T. 126; S. C. m Barb. 32; Mahoney v. Cook, 
 lie Penn. St. 342; Phila. E. E. Co. v. Towboat Co., 23 How. TJ. S. 218; 29 N. T. 11.5. 
 
 2 Ante, §§ 377, 378. See contra, Feital v. E. E., 109 Mass. 398; Connolly v. City of 
 Boston, 117 Mass. 64. 
 
 3 Christie v. Griggs, 2 Campb. 79; Camden & Amboy Pi. Co. v. Burke, 18 Wend. 
 Oil; Stokes v. Saltonstall, 13 Peters E. 181; Aston v. Heaven, 2 Esp. E. 533; 2 Kent's 
 Comm. 600, 601; Sharp v. Grey, 9 Bing. E. 457; 29 Barb. 602, 613; McPadden v. N. 
 T. Central E. E. Co., 44 N". T. 478; Eailroad Co. v. Pollard, 22 Wall. 341; Baltimore 
 & Yorktown T. E. v. Leonhardt, 66 Md. 70; Jloore v. Des Moines & F. D. Ey. Co., 69 
 Iowa, 491; Pennsylvania Co. v. Eoy, 102 U. S. 451; Chicago City E. E. Co. v. Engel, 
 35 111. App. 490; Treadwell v. Wliittier, 80 Cal. 574. 
 
 * Chi-istie v. Griggs, 2 Camnb. 03. ^ Bowen v. N. Y. Central E. Co., 18 
 
 N. Y. 408 411 ' " Hegeman v. Western E., 13 N. Y. 9, 24. 
 
 * 37 
 
578 Law of Bailments. 
 
 of a train of cars moving at a rapid rate, as that required in the manage- 
 ment of a stage coach moving more slowly. The diligence and forecast 
 must be proportioned to the danger ; they must be increased with the 
 use of a new and dangerous motive power, and with the speed of the 
 conveyance.^ 
 
 § 708. The rule requires of the proprietors of stages the utmost cau- 
 tion in respect to the manner and means by which their business is car- 
 ried on. The coachman must have competent skill, and must use that 
 skill with diligence ; he must be well acquainted with the road he un- 
 dertakes to drive ; he must be provided with steady horses, with a coach 
 and harness of sufficient strength, and properly made, and also with 
 lights by night. If there be the least failure in any one of these things, 
 the duty of the coach proprietors is not fulfilled, and they are answer- 
 able for any injury or damage that happens. But with all these things, 
 and where everything has been done that human prudence can suggest 
 for the security of the passengers, an accident may happen. The lights 
 may in a dark night be obscured by a fog ; the horses may be frightened, 
 or the coachman may be deceived by a sudden alteration in objects near 
 the road, by which he had been used to be directed on former journeys.^ 
 The proprietors are not answerable for injuries happening to passengers 
 from sheer accident or misfortune. Tlie rule does not require of them 
 all the care, vigilance and foresight of Avliich the human mind is capable, 
 under the highest tension. It requires of them all the care, vigilance 
 and foresight which they can reasonably exercise under the circum- 
 stances, considering the mode of the conveyance.^ And the rule is to 
 be interpreted prospectively.^ 
 
 1 Hegeman v. "Western Railroad, 1:5 X. Y. fi, 24; Philadelphia & Reading Railway 
 Co. V. Derby, 14 IIo\v. U. S. 48(i; Steamboat Xew World v. King, 1(1 How. V. S. 474; 
 Taylor v. Grand Trunk K. K., 4s N. H. .31.3; Beers v. Housatonic R. R. Co., 19 Conn. 
 .566. 
 
 2 Crafts V. Waterhoule, :> Bing. R. 321; Ingalls v. Bills, 9 Met. (Mass.) 1; Derwort 
 V. Loomer, 21 Conn. 11. 24"); Caldwell v. Murphy, 1 Duer, 2.;:J; 11 X. Y. 416. 
 
 ' TuUer v. Talbot, 23 1\\. 3.j7, 361; Derwort v. Loomer, supra; Hall v. Conn. River 
 Steamboat Co., 13 Conn. 319. It has been held that it is not error to charge the jury 
 that a stage-coach proprietor is bound to use " the utmost care" for the safety of his 
 passengers : Gallagher v. Bowie, 66 Texas, 26.5; and that it is no defense to an action 
 l)y a passenger to recover damages for the overturning of a coach that the driver suf- 
 fered the suggestions of the passenger to lead him oft the roadway, or that the pas- 
 senger knew of the custom of not using lights on the coach. Anderson v. Scholey, 
 114 Ind. .553. The law prohibits the employment of intemperate drivers by the owners 
 of carriages for the conveyance of passengers; Laws of 1S90, Chap. 5CiS, §§ 1,58, 1.5'.l; 
 and prohibits the driver from leaving his team untied while passengers remain in tlu- 
 coach, without placing the lines in the hands of some other person so as to preM'iit 
 their running. Id. § 160. * Bowen v. N". T. Central R. Co., IS X. Y. 408, 410. 
 
Caeeiees of Passenqeks. 579 
 
 § 709. By the rules of the common law every principal is liable for the 
 acts or omissions of his agent, and every master for those of his servant 
 ■within the scnpe of the employment for which the agent or servant 
 is retained. These rnles apply emphatically to carriers engaged in the 
 business of transporting passengers for hire ; and though, as a general 
 rule, the person who contracts to perform a particular service for reward 
 is responsible only for ordinary care and diligence, the law exacts from 
 passenger carriers and their servants extraordinary care and diligence ; 
 and hence unless the loss with which they are sought to be charged 
 appears to have resulted from irresistible force or inevitable accident, 
 they are not excused from liability. These rules have been often as- 
 sailed as harsh and inequitable ; but they are found in the code of nearly 
 every civilized nation, ancient and modern, and are in reality founded 
 on very manifest and sound reasons of public policy. If an injury re- 
 sults from the overturning of a stage, the true inquiry is whether the 
 injury has been caused by the want of the utmost care and diligence in 
 the carrier and his servants. Evidence which shows ,the want of such 
 care and diligence is sufficient to establish his liability ; but he is not 
 liable for injuries arising from force or pure accident.^ 
 
 One who, not being a common carrier of passengers, invites another 
 to ride with him, is not liable for so great a degree of care ; ^ and a 
 party engaging a carriage with horses and driver for such as may choose 
 to ride, acting as an undertaker at a funeral, is not the principal answer- 
 able for the negligence of the driver.' 
 
 § 710. The law requires passenger carriers to provide and use coaches 
 and other vehicles that are safe and sufacient for the journey, or busi- 
 ness in which they are employed ; * it requires them to examine their 
 conveyances, previous to the commencement of each trip or journey, 
 and to prepare them carefully for the road.* 
 
 1 Caldwell v. Murphy, 1 Duer, 233; S. C. 11 N.-T. 416. It is provided by statute in 
 New York, that the owners of every carriage running or traveling upon any turnpike 
 road or highway for the conveyance of passengers shall be liable jointly and severally 
 to the party injured, for all injuries and damages done by any person in the employ- 
 ment of such owners, as a driver, while driving such carriage, whether the accident 
 occasioning such injury or damage be willful or negligent or otherwise, in the same 
 manner as such driver would be liable. Laws of 1890, Chap. 568, § 161. The term 
 " carriage," as used in the statute, includes stage-coaches, wagons, carts, sleighs, 
 skvls and every other carriage or vehicle used for the transportation of persons and 
 goods, or either of them. Id. § 162. 
 
 2 Mofeatt V. Bateman, 8 L. R. App. 115. ' Boniface v. Kelyea, 6 Robt. 397. 
 
 4 Bremner v. Williams, 1 Carr. & Payne, 414; 13 Wend. 611; Alden v. ^f. T. Cen- 
 tral E. Co., 26 'N. T. 102, considered and explained in McPadden v. N. T. Central R. 
 Co., 44 N. Y. 478. 
 
 6 Ware v. Gay, 11 Pick. R. 106; Sharp v. Grey, 9 Bing. 457; Ingalls v. Bills, 9 Met. 
 
580 Law of Bailments. 
 
 Railroad companies are under the same obligation to provide safe and 
 secure cars, with engines and machinery in good order. They are com- 
 mon carriers <>f passengers, and they are held to the same standard or 
 degree of diligence as carriers by otlier and older modes of convej-ance ; 
 with this qualification, that the foresight and vigilance required by the 
 rule must cover the road-way and rails, engines, cars, couplings and 
 other appliances used in the l)usiness.^ They do notactually guarantee 
 the construction or safety of the road and bridges used by tln'-.n ; ^ and 
 they are answerable for the use of the highest skill and diligence in 
 constructing them, and in keephig them in a safe and suitable condition.' 
 They do not warrant the absolute safety, soundness and construction 
 of the cars and engines used by them ; ' and they are bound for the use 
 of the greatest skill and vigilance in their construction, and are liable 
 for any discoverable defects in the material or in the manufacture of 
 them ; ^ they cannot escape liability by showing that tliey were made by 
 
 1; Farish V. Reigle, 11 Gratt. (Va.) 697. The same dc-iei> of care and -n-atchfiilness 
 are not alike requisite to all of the various portions of the machinery and appliances. 
 The apparent necessity for frequency of examination depends somewhat upon the 
 liability to impairment, and the consequences which may be apprehended as the result 
 of defective condition. Palmer v. D. & H. C. Co., 120 N. T. 170. 
 
 1 13 X. Y. 9; 19 N. T. 127; .U X. T. 404; 4 Cush., 400; 1-5 Gratt. (Va.) 230, 206; 
 6Q Barb. 493 ; 4 Keyes, 108. 
 
 2 Toledo, etc., R, R. v. Conroy, 61 111. 162; TTithers v. North KentR. R., 3H.* X. 
 969; Grote v. Chester & H. R. Co., 2 E.xch. E. 2.-il. 
 
 "McEIroy V. Xashua & Lowell K. Cor., 4 Cush. 400; Virginia Central R. Co. ,. 
 Sanger, 1.5 Gratt. (Va.) 230, 230; Brown v. X. Y. Central R. Co., 34 X. T. 404; Brig- 
 noli V. Chicago * Great W. R. Co., 4 Daly, 1S2; Birmingham v. Rochester City i- C. 
 R. E. Co., 59 Hun, .jS.;; Searles v. Kanawlia A O. R. R. Co., 32 W. Va. 37i>; Lous- 
 ville, etc., R. E. Co. v. Lucas, 119 Ind. .503; Dodge v. Boston, etc.. Steamship ('<>., 
 148 Mass. 207; Louisville, etc., R. E. Co. v. .Jones, S3 Ala. 376; and see Vosburgh v. 
 L. S. ct M. S. Ry. Co., 94 X. Y. .374. The rule that the carrier must use the " ut- 
 most care and diligence " does not mean the utmost care and diligence which men 
 are capable of exercising, but that the carrier must use the utmost care consistent 
 with the carrier's undertaking, and with due regard to all the other matters which 
 otight to be considered in conducting the business. Dodge v. Boston, etc.. Steamship 
 Co., 148 Mass. 207. 
 
 < Readhead v. Midland R. Co., L. R. 2 Q. B. 412; L. E. 4 Q. B. 3S1; McPadden v. 
 N. Y. Central R. Co., 47 Barb. 247; 44 X. Y. 47S; Carroll v. Staten Island R. R. Co., 
 58 X. Y. 126, 137. 
 
 ^ Hegeman v. Western E. E. Cor., 13, X. Y. 9. Here the court holds the company 
 liable for an injury to a passenger arising from the breaking of an axle in consequence 
 of a latent defect not discernible on an external examination, provided the defect 
 could have been discovered in the process of manufacturing the axle by the use of any 
 test known to men skilled in the business. Carroll v. Staten Island R. R. Co., -58 
 N. Y. 120, 137. The case of Alden v. X. Y. Central E. R. Co., 26 N. Y. 102, goes 
 still farther. Steinweg v. The Erie R. Co., 43 N. Y. 123. In this case, and in Cald- 
 
Cabeiees of Passengees. 581 
 
 a skillful workman ; ^ they must answer for the proper construction and 
 sufficiency of their cars and engines when they purchase them, to the 
 same extent as when they furnish the materials and manufacture these 
 conveyances for their own use.^ The rule of diligence covers all the 
 means by which the business of conveying passengers is carried on ; it 
 requires that the railway carrier shall use the utmost vigilance, aided 
 by the highest skill, to construct and perfect its road and track, and 
 keep them in a safe condition ; and to equip it with cars and engines 
 adequate and sufficient for the safe conveyance of its passengers ; and 
 it requires that the carrier shall, in the performance of this duty, use 
 every and all means which existing science furnishes or discloses, to 
 guard against or to remedy defects in the construction or management 
 of its cars and other appliances so as to insure the safety of passengers.^ 
 § 711. The liability of common carriers for injuries to passengers aris- 
 
 well V. New Jersey Steamboat Co., 47 N. T. 282, where an injury was caused by the 
 explosion of a boiler, the court holds that a carrier of passengers by steam, where a 
 defect in the cars or in the machinery is so apt to prove fatal to human life, is bound 
 to use every precaution which human skill, care and foresight can provide, and to 
 exercise similar care and foresight in ascertaining and adopting new improvements to 
 secure additional protection. Costello v. Syracuse, Binghamton, etc., K. R. Co., 65 
 Barb. 92. 
 
 1 Sharp V. Grey, 2 Bing. 459; Francis v. Cockrell, L. R. 5Q. B. 184. But see Grand 
 Rapids, etc., K. R. Co. v. Huntley, 38 Mich. .5.37. That the carrier is liable for defects 
 in cars of other carriers used on his road to the same extent as if owned by himself, 
 see Pennsylvania Co. v. Roy, 102 U. S. 451; Jones v. jST. T. C. & H. R. R. R. Co., 28 
 Hun, 364; 92 N. Y. 628; Gottleib v. N. T., L. E. & W. R. R. Co., 100 N". T. 462; 
 Jetter v. Railroad Co., 2 Abb. Ct. App. Dec. 458; O'Neil v. R. R. Co., 9 Fed. Rep. 337. 
 
 2 Meier V. Peun. B. R., 64 Penn. St. 225; Caldwell v. New Jersey Steamboat Co., 
 47 N. Y. 282; Hegeman v. Western R. Cor., 13 IST. T. 9. 
 
 8 Idem; Carroll v. Staten Island K. R. Co., 58 N. T. 126, 137; Costello v. Syracuse, 
 Binghamton, etc., R. R. Co., 65 Barb. 92; Curtis v. Rochester & S. R. R. Co., 20 Barb. 
 282; S. C. 18 N. T. 534; Pennsylvania Co. v. Roy, 102 U. S. 451; Kelly v. Manhattan 
 Ry. Co., 112 N. T. 443. But the rule in relation to the liability of railroad corpora- 
 tions for injm-ies sustained by passengers through a defect in the road-bed, or in the 
 machinery, or in the construction of the cars, does not apply in full force to injuries 
 received by a passenger on account of the presence of -snow and ice on the stairway 
 leading to a station; Kelly v. Manhattan Ry. Co., 112 N. T. 443; or on the platform 
 of a car; Palmer v. Pennsylvania Co., Ill N. T. 484; or on account of too great dis- 
 tance between the steps of the cars and the platform; Lafflin v. B. & S. W. R. R. Co., 
 106 N. Y. 136; or on account of the fall of an article placed in the rack over the seat 
 by another passenger; Morris v. N. Y. C. & H. R. R. R. Co., 106 N. Y. 678; or on 
 account of a defective curtain hook on the side of a car; Kelly v. N. Y. & S. By. Co., 
 109 N". Y. 44; or on account of other defective appliances which do not constitute and 
 sustain the operative means of conveyance and transportation. See Palmer v. D. & 
 H. C. Co., 120 N. Y. 170, 177. In all such cases the carrier is bound simply to exer- 
 cise ordinary care in view of the dangers to be apprehended. Kelly v. Manhattan 
 Hy. Co., 112 N. Y. 443. 
 
582 Law of Bailments. 
 
 ing from defects in the cars, coaches or other means used by them is . 
 based on the fact of negligence ; the same as it is where injury results 
 from some fault or misconduct in the management of the motive power, 
 in the care of the track, or in the adjustment and use of switches.^ 
 
 In an action against the carrier by a passenger, for a personal injury, 
 the plaintiff holds the afEirmative of the issue, and it is incumbent upon 
 him to establish his cause of action, namely, that he was injured by the 
 defendant's negligence.^ ^Vnd this he may often do, by pro'^dng the fact 
 and the manner of the injury; as that the car in which he was riding, 
 moving at a moderate or usual speed, ran off the track and was broken 
 in pieces, injuring him in the wreck ; ' or that moving at ordinary speed 
 the train ran off on to a side track, falling into a ditch and injuring the 
 plaintiff;' or that in passing other cars standing on an adjacent track, 
 the plaintiff sittmg by the window with her arm on the sill was hit and 
 injured by some board or stick that swept along the side, rubbing and 
 marking the car ; ^ or that the plaintiff was injured by a collision of 
 trains running on the same road and under the defendant's management f 
 or that the plaintiff was injured by the explosion of a boiler used in the 
 transportation.' There is a reasonable and legal presumption that a 
 train of cars running at reasonable speed may, with the exercise of due 
 
 1 Carpue v. London <& Brighton E. Co., 5 Adolpli. & Ellis, New Eep. 749; 1 Carr. 
 & Payne, 749; Skinner v. London, Brighton & S. C. E. Co., 5 Exch. 7S7; CoUett v. 
 London & N. W. U. Co., 16 Q. B. 984; 15 Jui-. 10.53; Curtis v. Eochester & S. E. Co., 
 20 Barb. 2S2; S. C. 18 N. T. 534. An action may be brought on the implied contract. 
 Bremner v. Williams, 1 Carr. & P. 414; Camden & Amboy E. & Tr. Co. v. Burke, 13 
 Wend. 611 ; post, § 713. 
 
 2 Caldwell v. N. J. Steamboat Co., 47 N. T. 282; Hayes v. Forty-second St., etc., E. 
 E. Co., 97 N. T. 259. See Swarthout v. N. J. Steamboat Co., 48 N. T. 209. As to 
 the burden of proof negativing contributory negligence, see Eobinson v. X. Y. Central 
 & H. E. E. Co., 65 Barb. 146. 
 
 8 Edgerton V. N. T. & Harlem E. E. Co., 35 Barb. 193, 389; S. C. 39 N. T. 227; 
 Fietal v. Jliddlesex E. Co., 109 Mass. 398; Louisville, etc., E. E. Co. v. Smith, 2 
 Duvall (Ky.), .5.56; Carpue v. London, etc., Ey. Co., 5 Q. B. 747; Mullen v. St. John, 
 57 N. T. 507, .572. 
 
 1 Curtis V. Eochester & S. E. E. Co., 20 Barb. 282; S. C. 18 X Y. 534; Eeed v. 
 N. Y. Central E. Co., 45 N. Y. 574; 56 Barb. 493. 
 
 5 Holbrook V. Utica & S. E. Co., 12 N". Y. 236; S. C. 16 Barb. 113; 63 Barb. 260; 
 Chicago & Alton E. Co. v. Pondrom, 51 Bl. 333. 
 
 « Bridge v. Grand Junction E. Co., 3 Mees. & Welsby, 244; Wylde v. Northern I!. 
 E. Co., 53 N. Y. 150, 161; Willis v. Long Island E. Co., 34 N. Y. 670; 46 Penn. St. 
 1.51. 
 
 ' m. Central E. Co. v. Phillips, 49 HI. 234. Further evidence is of ten given. 18 X. Y. 
 209; 58 N. Y. 120. The mere fact that an accident occurred which caused an injury 
 is not generally, of itself, sufficient to authorize an inference of negligence against a. 
 defendant. Dobbins v. Brown, 119 N. Y. 188. 
 
Cajbeieks of Passengeks. 583 
 
 diligence, be made to keep the track ; that the switches can be properly 
 and securely adjusted ; that the roadway can be kept free from obstruc- 
 tion, with sufficient room on either side ; that by a proper arrangement 
 of the time of arrival and departure from each station, and the employ- 
 ment of suitable agents and servants, collisions may be prevented ; and 
 that explosions may be prevented by the exercise of great skill and care 
 in the construction and management of boilers.* 
 
 § 712. ISTegligence, and the requisite evidence to establish the fact 
 according to the plaintiff's allegation, do not properly come within the 
 scope of this work. It is sufficient therefore to touch the subject briefly 
 and only so far as to preserve its relations. 
 
 The mere fact that a passenger has sustained an injury while being 
 carried as such does not raise a presumption of negligence against the 
 carrier. But it generally happens that the same evidence which proves 
 the mjury done proves also the defendant's negligence ; or shows cir- 
 cumstances from which a strong presumption of negligence arises, and 
 which cast on the defendant the burden of disproving it. Proof that 
 the plaintiff was injured by the overturning of a stage-coach in which 
 he was riding is prima facie evidence of the carrier's negligence ; ^ and 
 is not overcome by proof that the passenger was riding on the outside, 
 after beiag requested to take an inside seat.* 
 
 Proof that the plaintiff was injured by the breaking down of the coach, 
 whUe moving with ordinary speed, is prima facie evidence of negligence 
 in its construction or in its due preparation for the road.^ So proof 
 that the plaintiff was injured by the breaking of the axle of the car in 
 which he was riding is sufficient prima facie proof of negligence; ^ or 
 
 1 Dobbins v. Brown, 119 K. T. 188. The presumption is acted upon in Illinois 
 Central v. Phillips, 49 111. 234. In Swarthout v. N. J. Steamboat Co., 48 N. T. 209, 
 the plaintiff went into evidence to show a defective construction of the boiler; 46 
 Barb. 222; and in Carroll v. Staten Island R. E. Co., 58 N. Y. 126, the carrier is held 
 liable for injury by the explosion, unless it is shown that the accident happened with- 
 out his fault or that of the manufacturer. See Bulkley v. Naumkeag Steam Cotton 
 Co., 24 How. U. S. 386; The Bark Edwin, 1 Sprague, 477; The Mohawk, 8 Wall. 15.5. 
 
 2McKinney v. Neil, 1 McLean, 540; Farish v. Eeigle, 11 Gratt. (Va.) 697; Fair- 
 child V. California Stage Co., 13 Cal. 599; 25 Cal. 460; McLean v. Burbank, 11 Minn. 
 277; Lemon v. Chanselor, 68 Mo. 340. 
 
 3 Keith V. Pinkham, 43 Maine, 501; 34 N. Y. 670. 
 
 « Curtis V. Drinkwater, 2 Bam & Aid. 169; Christie v. Griggs, 2 Campb. 79; 13 
 ^r. Y. 9; Ware v. Gay, 11 Pick. 106. 
 
 5 Hegeman v. Western R. Cor., 13 K. Y. 9. The same presumption attaches where 
 the spreading of a coupling link causes a train to separate, whereby a person is injured. 
 Griffin V Boston & A. E. E. Co., 148 Mass. 143. In some of the States statutes have 
 been enacted imposing upon railroad companies, after pfoof of injury, the burden of 
 showing the exercise of proper care. 
 
584 Law or Bailmexts. 
 
 proof that cattle were allowed to come upon the track, and that the 
 engine struck a cow killmg it, detaching the car in which plaintiff rode 
 and casting it over down the bank ; ^ proof of the injury, with the cir- 
 cumstances attending it, in cases like these, will generally establish the 
 plaintiff's cause of action, unless the defendant meets the case by show- 
 ing that the injury occurred without any fault or negligence on his part. 
 
 § 713. A railroad currier's duty to keep the track in a safe condition 
 for the passage of trains d( )es not render the company liable for the 
 criminal act of a stranger, in drawing the spikes and loosening a rail of 
 the road, shortly before the passing of a train, where no failure in dili- 
 gence is attributable to the officers and agents of the road.^ The carrier 
 cannot guard against an act of this kind, and is not held liable for the 
 resulting injury.* For the same reason, a company that guards its track 
 with due diligence is not liable for an injury resulting from the break- 
 ing of a rail by severe frost ; * or for any act of superior force that can- 
 not be anticipated or guarded against. The natural action of heat, 
 causing an expansion of the rails, will not excuse the company where it 
 appears that the track may be laid and used in such a manner as to 
 avoid danger from that cause.^ 
 
 § 714. The carrier's failure to fulfill a duty imposed upon him by 
 statute or by common law renders him liable, when his neglect results 
 in an injury to his passenger. But a statute requiring additional safe- 
 guards for the protection of passengers does not limit or modify his 
 common law liability ; " while it does uicrease his liability accordmg to 
 its terms.' 
 
 A railroad is not required by the common law to fence its roadway 
 to prevent tlie intrusion of cattle ; ' and yet the presence of cattle on 
 the track increases the danger of the journey along the road, and i> 
 often treated as one of the circumstances tending to establish the fad 
 of negligence in the carrier ; as calling for diligence on the part of the 
 road to prevent the cattle from coming upon the track, or such a dinii- 
 
 ' Bowen v. X. Y. Central E. Co., 18 X. Y. 408; Brown v. N". Y. Central R. Co., 34 
 N. Y. 404. 
 
 - Deyo Y. X. Y. Central R. Co., 34 X. Y. 9. Xegligenoe in leaving the track in an 
 unsafe condition will render the carrier liable. Read v. Spaulding, 5 Bosw. 395; 30 N. 
 Y. .".04, 030. 
 
 ' Keeley v. Erie R. Co., 47 How. Pr. 2M, a malicious misplacement of a switch. 
 
 4 McPaddeu v. X. Y. Central R. Co., 44 X. Y. 47S. 
 
 « Eeed v. X. Y. Central Co., '>C, Barb. 403. 
 
 « Caldwell v. N. .J. Steamboat Co., 47 X". Y. 282. 
 
 ' Carroll v. Staten Island R. Co., 58 X". Y. 126, 139. 
 
 8 Tonawanda K. v. hunger, 4 X. Y. 349; Railroad v. Skinner, 10 Peun. St. 301; 
 Toledo R. E. v. Vickery, 44 111. 70; Perkins v. Railroad, 29 Maine, 307. 
 
Caeeiebs op Passengers. 585 
 
 nution ot speed as may prevent a collision, with its consequent injury 
 to passengers.^ And while the duty of the railroad company to erect 
 fences along the road, and cattle guards at the crossings, imposed by 
 statute, appears to have been designed primarily for the protection ot 
 the general public and adjacent owners, there does not appear to be any 
 good reason depriving a person riding as a passenger on the road of the 
 right to insist upon that additional safeguard ; ^ especially where there 
 is no limitation in the terms of the statute. This interpretation of the 
 statute has been countenanced by eminent judges ; " and the duty thus 
 imposed is only a specification of one out of many embraced in the broad 
 rule of the common law.'' 
 
 § 715. By a course of logical development our courts are steadily 
 deducing specific duties from the carrier's general duty to exercise the 
 utmost care and the greatest foresight to insure the safety and con- 
 venience of passengers. The specific duties spring out of the general 
 duty, as branches out of the stem of a tree. 
 
 RaUroad carriers publishing a time-table, indicating the time of the 
 startiag of trains from the depots and stations along the road, are 
 bound to use all due and reasonable care and effort to keep their en- 
 gagement thus made with the public ; and they must use the same care 
 to notify the public of any change made in the time for the starting of 
 trains.^ They are also bound to use like reasonable care and effort to 
 complete the trip within the specified time ; and are liable in damages, 
 ■on the ground of negligence, for a failure in this respect.' 
 
 RaUway carriers are bound to annotmce the starting of a passenger 
 
 1 Brown v. N. T. Central R. Co., 34 N". T. 404. 
 
 "2 R. S. of N. Y. 689, 690, §§ 55, 56, cited by Judge Pbckham, in 34N. T. 408; 
 Bowen v. N. T. Central E. Co., 18 N". T. 408. For tlie corresponding provisions under 
 the present railroad law, see Laws of 1890, Chap. 565, § 32, as amended by Chap. 367 
 of Laws of 1891, and Chap. 676 of Laws of 1892. The road owes a different duty to a 
 citizen crossing its track from that which it owes to a passenger. Beiseigel t. N. Y. 
 Central E. Co., 40 N. Y. 9; Griffen v. N. Y. Central E. Co., 40 N. Y. 34; 8 Barb. 358, 
 390; Poler V. N. Y. Central E. Co., 16 N. Y. 476. 
 
 ' Corwin v. N. Y. & Erie R. Co., 13 N. Y. 42; Staats v. Hudson Eiver E. Co., 3 
 Keyes, 196; Tallman v. Syracuse, B. & N. Y. E. Co., 4 Keyes, 128. 
 
 * Brace v. N. Y. Central E. Co., 27 N. Y. 269; Shepard v. Buffalo, N. Y. & Erie E. 
 Co., 35 N. Y. 641. The statute in Vermont is held to bind the roads only in favor of 
 adjoining owners, not in favor of trespassers. Bemis v. C. & P. E. E., 42 Vt. 375. 
 
 6 Sears v. Eastern E. E. Co., 14 Allen, 433; Denton v. Great Northern E. Co., 5 
 ElUs & Bl. 860; Gordon v. M. & L. E. E. 52 N. H. 596. 
 
 6 Weed V. Panama R. E. Co., 17 N. Y. 362; Hurst v. Great Western E. Co., 19 C. 
 B. N. S. 310; Van Buskirk v. Eoberts, 31 N. Y. 661; Blackstock v. N. Y. & Erie E. 
 Co., 20 N. Y. 48. 
 
586 Law of liAiurEXTS. 
 
 train, or give notice of it by some suitable signal.^ They are bound to 
 give passengers tlie opportunity to get on board and take seats before 
 the train moves. It is their duty to use every reasonable precaution in 
 receivuig passengers, and in starting the train. ^ 
 
 It is also the duty of the railroad carrier to announce the stations 
 along the road as the train draws near to them, and come to a stop by 
 the platform or at a safe and suitable place for the passengers to leave 
 the cars ; and this announcement as the train comes to a halt is equiv- 
 alent to an invitation to the passengers to step off the cars ; ^ for which 
 purpose a reasonable time must be given.^ 
 
 Stopping for a space at a way station, to await the coming of a be- 
 lated train, the carrier must give through passengers who are within 
 reach reasonable notice to get on board ; the engineer or conductor 
 must give the usual signal, and use all reasonable diligence to recall 
 passengers to their seats in the cars. The custom, including the 
 whistle and the call, indicates the admitted duty and the proper mode 
 of discharging it.^ 
 
 § 71 G. The law does not enable a party to recover damages for an 
 injury resulting in part from his own negligence, or where his own 
 
 > Keating v. N". y. Central R. Co., 3 Lansing, 469; S. C. 49 N". Y. (173. The decis- 
 ion assumes tliat passengers are to get on at the depot or station, at the place pre- 
 pared and used for that purpose. 
 
 2 Curtis V. K. R., 27 "Wis. l.jS; Geddes v. E. R. Co., 10.3 Mass. 391; Brien v. Bennett, 
 8 Carr. & P. 724. 
 
 5 Columbus & Indianapolis Central R. R., 31 Ind. 408; Southern R. E. v. Kendrick, 
 40 Miss. 374; Kichols v. R. R., 7 Irish L. T. .5S; Lewis v. R. R. L. R., 9 Q. B. 70; 
 Dickens v. N. T. Cmtral R. Co., 1 Keyes, 23; 23 X. Y. l.'j.S; Central R. R. Co. w. 
 Thompson, 76 Ga. 770. 
 
 ■i Penn. R. R. v. Kilgore, 32 Penn. St. 292; T. W. <fe W. R. R. R. v. Baddeby, :>i 
 111. 19; Louisville, X. O., etc., R. R. Co. v. Mask, 64 Miss. 738. It is culpable negli- 
 gence on the part of a railroad corporation for its officers to induce a passenger to 
 leave the train while in motion, and a gross disregard of the duty it owes him not to 
 stop the train entirely and give the passenger ample time and opportunity to alijlit. 
 Filer v. N. Y. C. R. R. Co., 49 X. Y. 7A; Bucher v. N". Y. C. & H. R. R. R. Co., 98 
 X. Y. 128. It is parcel of the carrier's implied contract that he will notify passengers 
 when to alight, as the train comes to a station; and it is an act of negligence in a 
 passenger to alight before such announcement is made. Taber v. Del. , Lack. & W. 
 R. R. Co., 4 Hun, 765; 71 N. Y. 489; Johnson v. Hudson River R. Co., 20 X. Y. 65; 
 Hayes v. Gallagher, 72 Penn. St. 130. It is also the carrier's duty to give passengers 
 a reasonable time to alight; Burrows v. Erie R. Co., 3 T. it C. 44; and to bring the 
 train to a rest, and avoid sudden starts or jerks, while the passengers are moving out 
 of the cars. Milliman v. X. Y. Central * Hudson RiviT R. R. Co., 6 T. & C. .585; 
 S. C. 66 jST. Y. 642; Sauter v. X. Y. Central & Hudson R. R. Co., 6 Hun, 446; 66 
 X. Y. 50. 
 
 « State V. G. T. R. R. Co., 58 Maine, 176. 
 
Cakeiees of Passeistgees. 587 
 
 negligence contributes to the injury .^ The principle is one of general 
 application. The common law does not undertake in such cases to 
 divide and apportion the damages, or to impose damages in proportion 
 to the fault or negligence of each party. Hence a passenger has no 
 cause of action where he is injured through, or in consequence of, his 
 own negligence ; == or is guilty of contributory negligence.'' 
 
 What is contributory negligence ? In a passenger, it is a want of 
 ordinary care existing at the time of the injury, and having some con- 
 nection with it ; it is an act of negligence proximately contributing to 
 the injury complained of.* He cannot recover when his negligence co- 
 operates with that of the cJ&rrier in causing the injury ; and he can re- 
 cover where he exercises ordinary care and is injured by the carrier's 
 negligence.^ 
 
 § 717. By a statute of this State, if a passenger is injured on any 
 railroad wlule on the platform of a car, or on any baggage, wood or 
 freight car, in violation of the printed regulations of the company 
 posted up at the time in a conspicuous place inside of the passenger 
 cars, the company is not liable for the injury ; provided they have at 
 the time furnished room inside the passenger cars suflcient for the 
 proper accommodation of the passengers.^ Independent of the statute, 
 it is not negligence in a passenger to stand upon the platform, or to 
 ride in a baggage car ; and the statute does not apply where the com- 
 pany fail to furnish sufficient accommodations within the cars.' The 
 statute applies when an injury results from a passenger's being on the 
 platform or in a baggage car ; and it does not apply where an injury 
 results from a collision, occasioned by the carrier's gross negligence, 
 
 1 Baxter v. Troy & Boston R. Co., 41 N. T. 502; Wilcox v. Eome & Watertown R., 
 39 N. T. 358. ^ yan Schaick v. Hudson River E. Co., 43 N. T. 527. 
 
 ' Spooner v. Brooklyn City R. R. Co., 54 N. T. 230. 
 
 * Button V. Hudson River R. Co., 18 N. T. 248, and cases there cited. See Austin v. 
 N. J. Steamboat Co., 43 N. T. 75. 
 
 ^ The right to recover is not established by showing that the defendant was guilty 
 of greater negligence than the plaintiff — it is not a question of comparative negligence. 
 Bernhardt v. R. &. S. Railroad Co., 32 Barb. 165 ; McGrath v. Hudson River E. Co., 
 32 Barb. 144. See Castle v. Duryea, 32 Barb. 480. As to the degree or kind of care 
 called for by circumstances, aflBrming the general rule, see O'Keefe v. Chicago & E. 
 I., etc., R. R., 32 Iowa, 467. In favor of the comparative rule, see C. & J^. W. R. R. 
 Co. V. Sweeney, 52 111. 330 ; and Chicago, B. & Q. R. v. Gregory, 58 111. 272. 
 
 8 N. T. Laws of 1890, Chap. 565, § 53, as amended by Laws of 1892, Chap. 676. The 
 fact that the conductor does not object to a passenger's standing on the platform 
 cannot be taken as an implied waiver of the protection given by the statute. Higgins 
 V. N. T. & Harlem R. Co., 2 Bosw. 132. 
 
 ' "Willis V. Long Island R. Co., 32 Barb. 398 ; 34 ?^. T. 670 ; Nolan v. Brooklyn City 
 & Newtown R. R. Co., 87 N. T. 63. It is the duty of a railroad carrier to furnish 
 
58H Law of Bailments. 
 
 and ill no way attributal)le ta the circunistame of the passenger'f? 
 being out of liis place on the train ; as ^vliere a passenger was in the 
 baggage car, with the conductor's assent, at the time of the colUsion.^ 
 
 Aside from the statute, a railroad company may insist that passen- 
 gers shall ride in the cars,^ and thus throw upon those disobeying the 
 regulation the risk of riding in a place of so much exposure as the 
 platform between the cars — the specific risks incident to that position.' 
 But where the company makes no such regulation, and the conductor 
 tacitly permits passengers to stand upon the platform, or pass from 
 car to car to secure a seat while the train is moving, they are not 
 chargeable with negligence ; on ordinary railroads,* or on street cars.' 
 
 A passenger who unnecessarily, and of his own choice, rides on the 
 steps of a car or remains on the edge of the platform, cannot recover 
 damages for injuries received in consequence of such voluntary expos- 
 ure. He cannot recover where the injury results in part from his 
 failure to exercise reasonable prudence." 
 
 § 718. A passenger is bound to use ordinary care and prudence in 
 getting aboard of the train and in alighting from it. He does not ex- 
 ercise reasonable prudence when he attempts to get on the platform of 
 a car crowded with people, while the train is moving ; ' and he is not 
 
 each passenger with a seat. Thorp v. N. Y. C. & H. R. E. R. Co., 76 N. T. 402. But 
 if the carrier fails to perform this duty, it does not justify a passenger in refusing to 
 leave the platform, and to go inside the car when requested by a person in charge of 
 the train. G-ranville. v. Manhattan i;. R. Co., 105 X. Y. 'flo. See Louisville, etc., R, E. 
 Co. V. Kelly, 02 Ind. '^,11. Whether the statute applies to street railroads does not 
 seem to be decided. Hays v. Forty-second St., etc., R. R. Co., 97 N^. Y. 259. The 
 statute does not apply to a passenger passing from one car to anotlier. Costikyan v. 
 E., W. & O. E. E. Co., 58 Hun, 590; 128 N. Y. (W:!. 
 
 1 Carroll v. X. Y. & Xew Haven E. Co., 1 Duer, 571, and cases there cited; ap- 
 proved in 34 N. Y. 670, and in Halsey v. Earle, 30 X. Y. 208 ; Colegrove v. X. Y. & 
 N. H. and N. T. & Harlem R. Co., 29 X. Y. 492. 
 
 •^ Granville v. Manhattan il. R. Co., 105 N. Y. 525. 
 
 3 Merrell v. Lynn li. Co., 8 Allen, 234; Quinn v. I. C. R. E. Co., 51 111. 495; Camden 
 & Atlantic R. E. Co. v. Hoosey, 99 Pa. St. 492. 
 
 ■• McLityre v. X. Y". Central R. Co., :'S X. Y'. 287 ; 43 Barb. 532. See Marquette v. 
 Chicago & X. W. E. Co., 33 Iowa, 563; 15 111. 40S; Downs v. X. Y. CentralE., 47 
 X. Y. 83. 
 
 s Wilton V. Middlesex R., 107 Mass. 108; Burns v. Bellefont R., 50 Mo. 139; Seigel v. 
 Eisen, 41 Cal. 109; Sheridan v. Brooklyn E. Co., 36 X. Y". 39. 
 
 6 Quinn V. L C. R. Co., 51 111. 495; Ward v. Central Park, etc., E. R. Co., 11 Abbott 
 Pr. X. S. 411; 42 How. Pr. 289. A passenger is not chargeable with negligence 
 where he rides on the platform of a street car, on account of the crowded condition 
 of the car. Clark v. Eight Ave. R. R. Co., 36 X. Y. 135. 
 
 'Phillips V. Rensselaer A; Saratoga E. Co., 57 Barb. 644; S. C, 49 X. Y'. 177; Illi- 
 nois Central E. Co. v. Slatton, 54 111. 133. It is not an absolute bar to a recovery that 
 the plaintiff was injured while attempting to board a moving train. The act is not 
 
Cakkiees of Passengees. 589 
 
 free from blame where he attempts to alight from a car before it comes- 
 to a stop.i He is bound to conform to the regulations of the company, 
 in respect to place and manner of gettmg on and off ; and when he dis- 
 regards the rule of the company and gets on or off while the car is 
 in motion, he is fairly chargeable with negligence.^ A desire to get off, 
 so as not to be carried beyond the station, does not justify a passenger 
 in leaping from a car A\hile the train is moving." 
 
 A passenger riding on a street car may rise for the purpose of alight- 
 ing, and without negligence move to the platform or step of the car, 
 whUe it is yet in motion ; ' and the car bemg at a stand, he has a right 
 to rise, requesting the driver to keep his brake, for the purpose of 
 alighting ; and it is negligence on the part of the company to start the 
 car before he has time to step oflf.^ It being the conductor's duty to 
 stop only where it is prudent to do so, a passenger is not in fault who 
 moves to the platform on the conductor's suggestion, where he is in- 
 jured by a collision with an approaching truck.* So, in getting on a 
 street car, it is not as a matter of law negligence in a passenger to 
 enter by the front platform on the driver's request, where the car is at 
 rest or on the point of coming to a rest.' 
 
 § 719. A passenger has the right to go out upon the platform of a 
 railroad car drawn by steam, in order to escape from danger to his life 
 
 negligent in itself. The speed of the train is to be considered, in connection with 
 the conduct of the train servants and the age and activity of the' traveler, before his 
 action can be characterized as negligent. Eppendorf v. B. C. & IT. R. R. Co., 69 N. T. 
 195 ; Hunter v. C. & S. V. K. E. Co., 112 N. Y. 371. But under ordinary circum- 
 stances a person who attempts to board a train moving at a rate of from four to six 
 miles an hour is chargeable with negligence as a matter of law, notwithstanding 
 that he was told by the conductor, if he was going on the train, to jump on. Hunter 
 V. C. & S. V. E. E. Co., 112 N. T. 371; Solomon v. Manhattan Ey. Co., 103 N". T. 4.37. 
 
 1 Nichols V. Middlesex R. R., 106 Mass. 463; Railroad Co. v. Aspell, 23 Penn. St. 
 147. It is not under all circumstances, and as a matter of law, an act of negligence 
 for a passenger to attempt to alight from a moving train. Eaben v. Cent. I. E. E. 
 Co., 74 Iowa, 732; Louisville, etc., E. E. Co. v. Stacker, 86 Tenn. 343; St. Louis, I. M. 
 & S. R. E. Co. V. Person, 49 Ark. 182. 
 
 2 Lewis V. Baltimore & O. E. E., 38 Md. 588; Hickey v. Boston & Lowell E. Co., 14 
 Allen, 429; Johnson v. W. C. & R. R. Co., 70 Penn. St., 357; Knight v. Pontchartrain 
 E. E., 23 La. Ann. 462. 
 
 ' Jeffersonville R. Co. v. Hendricks, 26 Ind. 228; Illinois Central R. Co. v. Slatton, 
 54 111. 133; Morrison v. Erie R. Co. , 56 N. T. 302. 
 
 * Nichols v. Sixth Ave. R. Co., 38 N". T. 131. See Railroad Co. v. Pollard, 22 Wall., 
 341; Wood v. L. S. & M. S. Ey. Co., 49 Mich. 320. 
 
 5 Mulhado v. Brooklyn City E. Co., 30 N. Y. 370. See Chicago West Division Ey. 
 Co. V. Mills, 105 111. 63. 
 
 « Maverick v. Eighth Ave. E. Co., 36 N. T. 378. 
 
 " Maher v. Central Park, etc., E. E. Co., 7 Jones & Spen. 155. 
 
590 Law op Bailments. 
 
 and limbs arising from the unskillfulness and negligence of the com- 
 pany and its servants.^ He is not chargeable with contributory negli- 
 gence in thus attempting to leap from the car, to escape the imminent 
 danger of a collision. He is bound to act with reasonable discretion ; 
 and he is not bound to repress the instinct of self-preservation, and sit 
 still and take the chances. He is justified in seeking to escape injury, 
 by leaving the car.- For the same reason, where a passenger is by the 
 wrongful act of the company put to an election between leaving the 
 car while the train is moving slowly, and being carried beyond the 
 station where he designs to stop, and is injured while getting off on the 
 suggestion of a servant of the road, he is not chargeable with negli- 
 gence.' 
 
 Acting on the advice of a servant of the company and compelled to 
 act promptly, a passenger is not held to the same degree of prudence 
 as he may lie where he has time for deliberation and there is nothing 
 to bias his judgment. Such advice, under the circumstances, operates 
 as a kind of constraint ; and it would be unreasonable to hold him 
 chargeable with negligence as a matter of law, in favor of the company. 
 It is to be passed upon rather as a question of fact, whether under the 
 circumstances the passenger acted with reasonable prudence.* 
 
 § 720. It has been thought that a passenger riding in a stage or on a 
 tram of cars, having not the least control over the movement of the 
 conveyance, is so far identified with his carrier that he cannot recover 
 against a third party damages for an injury resulting in part from his 
 carrier's negligence ; on the ground that the negligent management of 
 the train or stage is attributable or imputable to him. And he certainly 
 cannot recover without showing that he was mjured by the negligence 
 of the defendant as one of the co-operating causes.^ If he establishes 
 
 lEklridge V. Long Island R. Co., 1 Sandf. 8i); Mitcliell v. Southern Pacific E. E. 
 Co., R7 Cal. (G. 
 
 2 Buel V. X. r. Central E. Co., 31 X. T. 314; Hazman v. Hoboken L. & I. Co., 2 
 Daly, 130; .57 Barb. 560; Caswell v. Boston & Worcester E., 98 Mass. 194; Twomley 
 v. C. P. N. & E. E. E. Co., 69 N. T. 1.5s. See Lowery t. Manhattan Ey. Co., 99 N". T. 
 158; Dyer v. Erie Ey. Co., 71 N. T. 228. 
 
 8 Filer v. New York Central E. f:o., 49 N. Y. 47; Penn. P,. P. Co. v. Kilgore, 32 
 Penn. St. 292; Liner v. G. W. E. Co., L. E. 3 Exch. 150. 
 
 * Filer v. N. Y. Central E. Co., 49 N. Y. 47, and cases there commented ujion by 
 Allen, J.; Foy v. L., B. & So. E. E. Co., 18 Com. Bench, N. S. 225; Lent v. X. Y. 
 C. & H. E. E. E. Co., 120 ?f. Y. 407; Bucher v. X. Y. C f- H. E. E. E. Co., 98 X. Y. 
 128. Negligence is a question of law where the facts are undisputed. Morrison t. 
 Erie Ey. Co;, 50 N". Y. 302. 
 
 s Thorougligood v. Bryan, 8 C. B. 115; Callin v. Ilills, 8 C. B. 123; Smith v. Smith, 
 2 Pick. 021; Cleveland E. E. v. Terry, 8 Oliio St. 570; Lockhardt \. Lichtenthaler, 
 46 Penn. St. 151. 
 
Caeeiees of Passengees. 591 
 
 that fact, he may recover. The law does not impute to him the negli- 
 gence of his carrier.i Being injured by a collision resulting from the 
 negligence of his carrier's servant and that of another company, he may 
 recover against both, or against either.^ 
 
 On the other hand, the care of an infant of tender years belongs of 
 right to his parents or guardian ; and the negligence of a parent exposmg 
 a child to injury is attributed to the child, when he brings an action 
 to recover damages for the injury. The conduct and movements of the 
 child, as a passenger, are under the guidance and control of the parent, 
 lawfully and rightfully ; the child is not sui juris, it has no capacity 
 or right of self-direction, and often no physical power to act for itself.^ 
 An insane man, incapable of taking proper care of himself, falls under 
 the same rule ; the neglect of his guardian is attributed to him, when 
 he brings an action for a personal injury arising in part from the want 
 of due guardianship. 2 The doctrine has given rise to some debate.* And 
 it appears to be settled that a sick or aged person, a delicate woman, a 
 lame man or a child is entitled to more attention and care from a railroad 
 company than one in good health and under no disability. As they must 
 now and then travel, they are entitled to some indulgence, precisely on 
 account of their weakness or infirmity ; e. g., they are entitled to more 
 time in which to get on or oflE the cars, or to cross the street.^ Being sui 
 
 1 Webster v. Hudson River K. Co., 38 N. T. 260; Sheridan v. Brooklyn & N. E. Co., 
 .16 y. T. 39; Chapman v. K. H. E. Co., 19 N. Y. 341; Colegrove v. Harlem & N. H. 
 E. Co., 20 N. T. 592; 32 N. Y. 597; Bennett v. N. J. E. & T. Co., 36 ST. J. L. 225; 
 K Y., L. E. & W. E. E. Co. v. Steinbrenner, 47 N. J. L. 161; Transfer Co. v. Kelly, 
 38 Ohio St. 86; Wabash, etc., E. E. Co. v. Schacklet, 105 111. 364; Little v. Hackett, 
 116 U. S. 366; McCallum v. Long Island E. E. Co., 38 Hun, 569. The same rule is 
 held where a person is riding in another's wagon. Bobinson v. N. Y. Central & Hud- 
 son E. E. Co., 65 Barb. 146; S. C. 66 ?f. Y. 11; Hoag v. N. Y. C. & H. E. E. E. Co., 
 Ill N. Y. 199; Masterson V. N. Y. C. & H. E. E. E. Co., 84 N. Y. 247; Dyer v. Erie 
 Ey. Co., 71 N. Y. 228; Phillips v. IST. Y. C. & H. E. E. E. Co., 127 N. Y. 657. See 
 Brickell v. JST. Y. C. & H. E. E. E. Co., 120 K. Y. 290. 
 
 2 Morrison v. Erie E. Co., 56 T^. Y. 302; Downs v. N". Y. Central E. Co., 47 N. Y. 
 83. These cases assume the principle as applicable to an infant carried as a passen- 
 ger. Waite V. K E. Eailw. Co., E. B. & E. 719. Where the child has done no negli- 
 gent act, the negligence of the parent will not defeat a recovery by the child. Mc- 
 ■Garry v. Loomis, 63 N. Y. 104; Ilil v. Forty-second St., etc., E. E. Co., 47 N". Y. 317. 
 And the negligence of a child not sui juris will not defeat a recovery without con- 
 curring negligence on the part of the parents or guardians. Kunz v. City of Troy, 
 104 N". Y. 344. 
 
 = Willetts v. Buffalo <fe Eochester E. Co., 14 Barb. 585. 
 
 * American Law Eeview, 405, April No. of 1870; Honegsberger v. Second Ave. E. 
 Co., 1 Eeyes, 570; 65 Barb. 92; Thurber v. Harlem, B. M. & F. E. E. Co., 60 N". Y. 326. 
 
 5 Thurber v. Harlem, B. M. & F. E. E. Co., 60 ST. Y. 326, 336; Sheridan v. Brooklyn 
 & Newtown E. E., 36 N. Y. 39; Eailroad Co. v. Stout, 17 Wall. 657. A person of 
 
o92 Law of Bailments. 
 
 Juris, the law demands of infants such care as they are capable of under 
 the circumstances. 
 
 § 721. Negligence is not to be presumed in the plaintiff or in the de- 
 fendant. Hence the burden of proving contributory negligence rests 
 with the defendant, where the plaintiff has established his cause of 
 action without disclosuig any facts implicating him in the negligence 
 causing the injury.^ And hence also the plaintiff must exculpate him- 
 self where the proof discloses want of care on his part. lie must estab- 
 lish his cause of action ; and negligence by the defendant, with ordinary 
 care by the plaintiff, is necessary to sustain the action.'-' And so it hap- 
 pens that in some cases the plaintiff must show affirmatively that he 
 acted with reasonable care, besides proving the defendant's negligence." 
 
 Negligence on the part of an infant plaintiff is generally treated as a 
 matter of fact to be found by a jury. Contributory negligence by the 
 parents of a very young child does not defeat a recovery against a 
 railroad company for running over and injuring it, where it appears 
 that the engine driver might have stopped the engine and prevented 
 the injury with the exercise of ordinary care.^ On the other hand, 
 
 defective sight is bound to use what senses he has ; Gonzales v. X. T. & Harlem E. 
 Co. , 38 N. Y. 440 ; 1 Jones & Spen. ")" ; a cripple was treated with some consideratioa 
 on that account in Colt v. Sixth Ave. K. Co., 1 Jones & Spen. 189; a lad on account 
 of his infancy, in O'Mara v. Hudson River R. Co., 38 N. T. 44.5; and in Costello v. 
 Syracuse & R. E. Co., 6.5 Barb. 92; and in Mangum v. Brooklyn R. Co., .38 S. T. 455, 
 the coui't shows some reluctance to attribute to the infant the parent' s negligence ; 
 Ihl V. Forty-second St., etc., R. R. Co., 47 X. T. 317; Lynch v. Smith, 104 Mass. 52; 
 58 111. 226; Railroad Co. v. Mahoney, 57 Penn. St. 157; B. & I. R. R. Co. v. Snyder, 
 18 Ohio St. 414. The tendency of these cases is to qualify the doctrine of Hartfield v. 
 Roper, 21 "Wend. 615. 
 
 1 Robinson V. X T. Central & Hudson River E. Co., 65 Barb. 146; Hackford v. 
 N. Y. Central R. Co., 43 How. Pr. 222. These cases are not in conflict with Johnson 
 V. Hudson River R. Co., 20 N". Y. 65; or with Button v. Hudson River R. Co., 18 
 X. Y. 248; Indianapolis & St. Louis R. Co. v. Horst, 93 U. S. Rep. 3 Otto, 291. 
 
 2 Harlow V. Humiston, 6 Cow. 189; Butterfield v. Forrester, 11 East, 60; Rathbun 
 V. Payne, 19 Wend. 399. 
 
 ^ The burden of showing freedom from contributory negligence rests upon the 
 plaintiff. The absence of such negligence may be established from inferences which 
 may properly be drawn from the surrounding facts and circumstances. But such 
 inference cannot be drawn from a, presumption that a person will exercise care and 
 prudence in regard to his own life and safety. And where the circumstances point 
 as much to the negligence of the person injured as to its absence, or point in neither 
 direction, the plaintiff must be nonsuited. Wiwirowski v. L. S. & M. S. R. Co., 124 
 X. Y. 420; Cordell v. X. Y. C. & H. R. I!. E. Co., 75 X. Y. 330; Brickell v. X. Y. C. 
 & H. R. R. R. Co., 120 X. Y. 290. 
 
 * Kenyon v. X. Y. Central ct Hudson R. E. Co., 5 Hun, 479, and cases there cited; 
 Mangum V. Brooklyn E. R. Co., 38 X. Y. 455; Darley v. Xorwich E. Co., 26 Conn. 
 591; Ihl V. Forty-second St. R. R. Co., 47 X. Y. 317; Green v. Erie Ry. Co., 11 Hun, 
 
Cabkiees of Passengers. 593 
 
 contributory negligence by a child of sufBcientage to travel by himself 
 will defeat his action when he fails to exercise that degree of care and 
 prudence which may be reasonably expected from him.^ 
 
 § 722. A railroad company which continues to use a defective and 
 dangerous locomotive engine, after notice of its dangerous condition, is 
 liable even to one of its servants engaged in running the engine for an 
 injury sustained by him in consequence of the defects, without negli- 
 gence on his patt.^ This liability is placed upon the ground that the 
 master is liable for his own negligence to his servant ; and that this 
 neghgence may consist in the employment of unfit and incompetent 
 servants and agents, or in the furnishing for the work to be done, or for 
 the use of the. servant, machinery or other implements and facilities 
 improper and unsafe for the purposes to which they are to be applied.' 
 The employment of an intemperate or unskillful workman, or the reten- 
 tion of him, with knowledge, renders the master liable to a servant who 
 is injured through the negligence or unskillfulness of the incompetent 
 man.* As the liability rests on the ground of negligence in the em- 
 ployer, he is not held liable, as for a defective structure, where he does 
 his best to employ competent men to perform and supervise the work.^ 
 The workmen being properly chosen, the master is not liable to one of 
 them for the negligence of the other ; ° and yet may be held liable where 
 his own negligence combines with that of his servants to produce the 
 injury. E. (/., a railroad company is guilty of negligence in not sending 
 out with a train a suflQcient number of brakemen, and is liable to a 
 servant on another train for a personal injury resulting therefrom and 
 from the negligence of co-servants.' 
 
 333. Such cases are exceptions to the rule that a party in an action against another 
 to recover damages for an injury alleged to have heen caused by the negligence of the 
 latter must fail unless he proves that the negligence alleged caused the injury. Cos- 
 grove V. N. T. C. & H. E. E. E. Co., 18 Hun, 329, 331. 
 
 1 Thurber v. Harlem, B. M. & F. E. E. Co., 60 N. T. 326; McMahon v. Mayor, etc., 
 of New York, 33 N. Y. 642; Honesberger v. Second Ave. E. E. Co., 1 Keyes, 570; 
 Tucker v. N. Y. C. & H. E. E. E. Co., 124 N. Y. 308, and cases cited. 
 
 2 Keegan v. The Western E. E. Co., 8 N. Y. 175; Coon v. Syracuse & Utica E. Co., 
 ■5 N. Y. 492; Harwell v. B. & "W. E. E. Co., 4 Met. 49. 
 
 8 Wright V. N". Y. Central E. Co., 25 N. Y. 562; Priestly v. Fowler, 3 M. & W. 1; 
 Hayden V. Smithville Manuf. Co., 29 Conn. 548; Plank v. N. Y. Central & Hudson 
 E. E. Co., 60 N. Y. 607. 
 
 * Laning v. N. Y. Central E. Co., 49 N. Y. 521. 
 
 6 Warner V. Erie E. Co., 39 N. Y. 468; Hard v. Vermont Central E. Co., 32 Vt. 
 473. See also, Gibson v. Erie E. Co., 63 N". Y. 449. 
 
 « Hofnagle v. N. Y. Central & Hudson E. E. Co., 55 J^. Y. 608; Haskins v. N. Y. 
 C. & H. E. E. Co., 65 Barb. 129. 
 
 ' Flike V. Boston & Albany E. E. Co., 53 N. Y. 549; Sprong v. Same Co., 5S N. Y. 56. 
 
 .38 
 
6 'J 4 Law of Bailments. 
 
 § 723. The responsibility of the carrier for the safe conveyance of 
 passengers is the same, whether the work is done.by him personally 
 or by his servants and agents. Ilis own obligation is the measure of 
 the diligence and circumspection and foresight demanded of those who 
 are engaged in his employment. The act or neglect of the servant is 
 that of the principal, who engages to assume and answer for it as his 
 own ; and it is immaterial whether the agent be in fact incompetent, or, 
 being competent, proves himself negligent m performing the duties of 
 his place.^ If he be an intemperate man or otherwise untrustworthy 
 his employer is answerable for any injury that may result from his 
 misconduct ; for it is a great neglect of duty in the carrier of passen- 
 gers to entrust to such a person any responsibility for human life.^ 
 
 It follows from the general rule of liability already stated, and it has 
 been distmctly adjudged, that the carrier of passengers is answerable 
 for any injury resulthig from rash and furious driving, racing or other 
 reckless conduct in the conveyance of passengers.^ Merely fast driving 
 is not of itself evidence of misconduct ; but the least degree of impru- 
 dence or want of care in the driver renders his employers liable ; and 
 where a collision or other accident occurs while the driver is engaged 
 in a race or trial of speed, the carrier is responsible in exemplary 
 damages.^ 
 
 The same principle applies to a railroad carrier. The company is 
 liable to a passenger for the reckless conduct of an engineer in driving 
 a train of cars with speed against obstructions upon the track in broad 
 daylight ; " tliey are liable for his rashness in driving a train -nath im- 
 proper speed over a defective track, or for running out of time on a 
 track on which a train is due coming from an opiDosite direction.^ 
 
 1 Ante, § 710; ATilliams v. Vanderbilt, 28 N. T. L'17; Roberts v. Jolinson, .38 X. Y. 
 6l:!. 
 
 -Stokes V. Saltonstall, 13 Peters, 181; Eldridge v. Long Island E., 1 Sandf. 89. 
 The employment of an intemperate driver by a carrier is prohibited by Laws of 1890, 
 Chap. 568, §§ l.'jS, 1.59. 
 
 3 Peckv. Xeil, :i McLean C. (_'. 22; Monroe v. Leach, 7 Met. 274; Churchill v. Rose- 
 beck, 15 Conn. 350; Mayor v. Humphries, 1 Carr. & P. 251; Gough v. Bryan, 5 
 Dowl. P. C. 7(i5; Claflin v. Wilco.x, IS Vt. 005. Laws of 1800, Chap. 5()S, § 161. 
 
 * Peck v. Xeil, supra, and cases above cited. A person driving any vehicle upon 
 any plank road, turnpike or public highway who unjustifiably runs the horses draw- 
 ing the same, or causes or permits them to run, is guilty of a misdemeanor. Penal 
 Code, § OGO. 5 -Willis y. Long Island R. Co., U X. Y. 670, 075. 
 
 6 Buel V. N". Y. Central R. Co., 31 N. Y. 314; Carpue v. Brighton R., 5 Q. B. 747; 
 Parwell v. Boston R., 4 Met. 40. The carrier is also liable for an injury caused by the 
 sudden backing of a train, while a passenger is attempting to get off; and cannot 
 esrajie liability by showing that the passenger was intoxicated. Millman v. X. Y. < '. i': 
 H. 11. Co., 66 N. Y. 042. 
 
Cakkiees op Passengees. 595 
 
 § 724. Law of the Road. It is the duty of the carrier of passengers, 
 as well as of all other travelers upon the highways, to observe the 
 established usage or law of the road in passing other teams and vehicles. 
 In England the custom is to keep to the left in passing ; in this country 
 the rule is reversed, each party keeping to the right.^ But the rule is 
 not so invariable as to require the traveler in all cases to keep exactly 
 to the right ; if a carriage coming in any direction leave sufficient room 
 for any other carriage, horse or passenger on their proper side of the 
 way, it is a sufficient compliance with the law of the road.^ Where the 
 road is clear, the driver may go on what part of the road he thinks fit, 
 and is not chargeable with the consequences, though by reason of his 
 horses taking fright an injury is caused to a third person which might 
 not have happened if he had been on the right side of the road.' 
 
 Under our statutes, wherever any persons, traveling with any car- 
 riages or other conveyances, shall meet on any turnpike road or public 
 highway in this State, the persons so meeting shall seasonably turn 
 their carriages to the right of the center of the road, so as to permit 
 such carriages to pass without interference or interruption, under a 
 penalty for every neglect or offense, to be recovered by the party injured.^ 
 On a question arising under this act, it was adjudged that by a sound 
 construction of it the parties are to keep to the right of the center of 
 the road, although it may be more difficult for one party to turn out 
 than the other ; the act was designed to settle and establish the rights 
 of travelers in such a manner that there can be no mistake about them ; 
 and it does establish, upon consideration of public policy, a broad, 
 general rule, which is strictly enforced, although sometimes it may op- 
 erate inconveniently upon parties. It is not the center of the smooth or 
 most traveled part of the road which is the dividing line, but the center 
 of the worked part, although the whole of the smooth or most traveled 
 path may be upon one side of that center, unless the situation of the 
 road is such that it is impracticable or extremely difficult for the party 
 to turn out.^ 
 
 A traveler on horseback, meeting another horseman or vehicle on a 
 pubhc highway, is not required to turn out in any particular direction ; " 
 
 1 story on Bailm. § 599; Kennard v. Burton, 25 Maine E. 39; Laws of 1890, Chap. 
 568, § 157. ^ Wordsworth, v; Willan and others, 5 Esp. R. 273. 
 
 3 Aston V. Heaven, 2 Esp. K. 533; Foster v. Goddard, 40 Maine, 64. 
 
 * Laws of 1890, Chap. 568, § 157. 
 
 6 Earing v. Lansing, 1 Wend. R. 185; Johnson v. Small, 5 B. Mon. 25; Burdick v. 
 Worrall, 4 Barb. 596. The rule is qualified when a road is covered with deep snow. 
 Smith V. Dygert, 12 Barb. 613. 
 
 = Dudley v. Bolles, 24 Wend. E. 405. The owner of the adjoining land may occupy 
 that part of the sides of the road not subject to the right of way. 6 Cowen E. 189. 
 
596 Law of Bailments. 
 
 all that is required is prudent care under existing circumstances. In 
 England, on the contrary, it is adjudged that the rule of the road as to 
 keeping the proper side applies to saddle horses as well as to carriages ; 
 and where a carriage and horse are to pass, the carriage must keep its 
 proper side, and so must the horse. If, however, the driver of a carriage 
 is on his proper side, and sees a horse coming furiously on the wrong 
 side of the road, it is the duty of the driver of the carriage to give way 
 and avoid an accident, although in so doing he goes a little on what 
 would otherwise be his wrong side of the road.^ 
 
 § 725. When a traveler deviates from the rule of the road, he is 
 bound to use a greater degree of care and caution, and keep a more 
 watchful lookout to avoid coming in contact with other vehicles, than 
 is necessary when he remauis on the right side of the road.'^ And so 
 where parties on the road meet on a sudden, and a collision ensues, the 
 party on the wrong side must answer for the damages, unless the other 
 has been deficient in the exercise of ordinarj'' care ; ^ and his failure to 
 adopt on the instant the best means of avoiding a collision is not con- 
 sidered Want of ordinary care in a party driving on the right side. 
 
 The circumstances are to be considered in the application of the rule. 
 Parties driving along a road in the night time must on that account 
 observe the rule with care ; * while a party driving along the highway 
 in the day time, with a heavy load, is not so strictly bound, when he 
 meets a light wagon where there is plenty of room.^ So on the crowded 
 streets of a city, situations and circumstances frequently arise where the 
 driver is justified in deviating from the law of the road, and is actually 
 bound to do so to avoid a collision." 
 
 The statute prescribing the rule, that persons in carriages meeting on 
 the highway must seasonably turn to the right of the center of the road, 
 receives a reasonable interpretation. If the road be covered with deep 
 snows or drifts, the parties are to turn to the right of the center of the 
 beaten or traveled track.' The statute in some of the States, in terms, 
 requires travelers to keep to the right of the center of the worked por- 
 tion of the road, which when covered with snow is construed to mean 
 the beaten and traveled track.' 
 
 1 Turlny y, Thomas, 8 Carr. & Payne P.. 104. 
 
 2 Pluckwell V. Wilson, 5 C. * Payne, 375. 
 
 3 Chaplin v. lliiwcs, .3 0. & Payne, 554; ICennard v. Burton, 25 Maine, 39. 
 
 * Cruden v. Fentham, 2 Esp. 685. 
 
 ^ Grier v. Sampson, 27 Penn St. 183; Wordsworth v. Willan, 4 Esp. 273. 
 « Jackson v. Tollett, 2 Stark. 37; Wayde v. Carr, 2 Dow. ct K. 255. 
 ' Smiih V. Dygert, 12 Barb. 013. 
 
 * Jaquith v. Ricliardson, 8 Met. 213; .Johnson v. Small, 5 B. Mou. 25. 
 
Careiees op Passengers. 597 
 
 § 726. One muirs failure to observe the law of the road does not justify 
 another in purposely riding or driving against him ; nor can an obstruction 
 in the way be made a ground of action to one who rides upon it with 
 great violence, or without using ordinary care ; ' nor can a private ac- 
 tion be maintained to remove the obstruction.^ 
 
 The practical operation and effect of the law or usage of the road 
 appears when an action is brought to recover damages against a party, 
 caused by his driving or turning on the wrong side. The injured party 
 recovers when it appears that "without fault on his part he was injured 
 by the illegal and careless act of the defendant ; and lie fails to recover 
 when it appears that his fault or negligence in any way contributed to 
 the injury of which he complains.'' 
 
 The fact that the plaintiff is on the wrong side of the road, at the 
 time of a collision, indicates negUgence ; but it does not prevent a re- 
 covery where the defendant intentionally or unnecessarily drives 
 against him. Keeping on the right side of the road, a party can only 
 be required to exercise ordinary diligence to prevent a collision.* The 
 same rule holds when a person driving a span of horses is overtaken 
 by another team, rushing against his wagon ; he may recover, where he 
 could not avoid the injury by the use of ordinary care.^ The carriage 
 in advance has the right to occupy any part of the road ; and the car- 
 riage attempting to pass should ordinarily calculate upon the exercise 
 of this right, and so keep clear of a collision." 
 
 § 727. The rule of the road does not apply with respect to a carriage 
 and a foot passenger ; for as regards foot passengers, a carriage may go 
 on either side of the road. But a foot passenger has a right to cross 
 the carriage road, and a person driving a carriage on it is bound to use 
 reasonable care to avoid driving against him.' So in crossing the 
 
 1 Butterfield v. Forrester, 11 East, 60; Smith v. Smith, 2 Picls;. 621. 
 
 2 Dawson v. St Paul Fire Ins. Co., 15 Minn. 136; Houck v. Wachter, 34 Md. 265. 
 
 8 Morris v. Phelps, 2 Hilton, 38; Burcle v. N". Y. Dry Dock Co., 2 Hall, 151; Lane 
 T. Crombie, 12 Pick. 177; Kennard v. Burton, 25 Maine, 39. 
 
 * Burdick v. Worrall, 4 Barb. 596. 
 
 6 Center v. Finney, 17 Barb. 94; Davies v. Mann, 10 Mees. & Wels. 546. An act of 
 neglect by the plaintiff preceding that of the defendant will not excuse the defendant 
 where he has time to prevent an injury. Brownell v. Flagler, 5 Hill, 282, and note. 
 
 6 Mahew v. Boyce, 1 Stark. 423; Bolton v. Colder, 1 Watts, 360. The driver of the 
 team behind may pass either to the right or to the left. Clifford v. Tyman, 61 N. H. 
 508. But the one so attempting to pass does so at his peril so far as to render him 
 liable for damages he causes to the one he attempts to pass, unless the latter brought 
 the disaster upon himself. Avengo v. Hart, 25 La. Ann. 235. 
 
 ' Boss V. Litton, 5 C. & Payne, 407; Hawkins v. Cooper, 8 C. & Payne, 473; Wolf 
 V. Beard, 8 C. & Payne, 373; Brand v. S. & Troy Eaib-oad Co., 8 Barb. 368, 380. 
 Moebus V. Herrmann, 108 K. T. 349; Murphy v. Orr, 96 N. T. 14. 
 
598 Law of Bailments. 
 
 streets of a city ; neither footmen nor teams have any right of way 
 superior to the other. They liave each the riglit in common, and equally 
 ■with the other, and are bound in its exercise to use reasonable care for 
 their own safety, and to avoid doing injury to others in the exercise of 
 the same equal right of way.^ A person's failure to pull up in time, 
 because his reins break, is no defense to an action for runnmg down a 
 footman.^ And a failure to observe approaching teams as one is about 
 crossmg a street is not necessarily such contributory negligence as will 
 defeat an action. The duty imposed upon a wayfarer at the crossing 
 of a street by the track of a railroad to look both ways does not as a 
 matter of law attach to such person when about to cross from one side 
 to the other of a city street. The degree of caution he must exercise 
 will be affected by the situation and surrormding circumstances.^ 
 
 § 728. The statute has no application to the meeting of railroad car.s 
 with common vehicles. The cars running in a grooved track cannot 
 turn to the right or to the left ; and so a cart or carriage about to meet 
 a railroad car must yield the whole track, turning either to the right 
 or to the left as is most convenient. And when a railroad runs length- 
 wise upon a street or highway, common vehicles have the right to 
 travel on the track, across it or lengthwise. Of necessity the company 
 has the right of way, other carriages behig obliged to give the cars a 
 free track ; in other respects, they are bomid to run their cars with 
 prudence and discretion, so as to avoid collision with other convey- 
 ances.^ They are not bound to run on the right hand track, where the 
 road has two tracks, and they are bound to use all reasonable means to 
 avoid a collision.'' Their liability for the acts of the driver is pre- 
 scribed by the principles of the common law.' 
 
 1 Cotton V. Wood, 8 Com. Bench, 568, 571; 98 Eng. Com. Law, 571; Barker v. Sav- 
 age, 45 X. T. 101. 
 
 2 Cotterill v. Starkey, 8 C. & Payne, 691 ; Wakeman v. Robinson, 1 Bing. 212. 
 
 8 Moody V. Osgood, .54 X. Y. 488; Moebus v. Herrmann, 108 X. T. 349; McClain 
 V. Brooklyn City R. K. Co., 116 N. T. 459; Wendell v. X". T. C. &. H. R. R. R. Co., 
 91 N. y. 420, 429. 
 
 * Hegan v. Eighth Avenue R. Co., 15 N. T. 380; Isaacs v. Third Avenue E. R. Co., 
 47 N. T. 122. This is undoubtedly the rule as to street cars and veliicles moving in 
 the same or opposite directions. But a railway crossing a street stands upon a differ- 
 ent footing. The car has the right to cross and must cross the street, and the vehicle 
 has the right to cross and must cross the railroad track. Neither has a superior right 
 over the other. The right of each must be exercised with due regard to the right of 
 the other. O'lSTeil v. Dry Dock, etc., R. R. Co., 129 N. Y. 125. See McClain i. 
 Brooklyn City E. R. Co., 116 N. Y. 459; Davenport v. Brooklyn City R. R. Co., 100 
 N. Y. (i:;2; Fenton v. Second Ave. R. R. Co., 126 N. Y. 625. 
 
 5 Altreuter v. Hudson River R. Co., 2 E. D. Smith, 151. 
 
 6 Whitaker v. Eighth Ave. R. R. Co., 51 N. Y. 295; 47 N. Y. 122. 
 
Caekiees of Passengers. 509 
 
 A railroad company has the right to run its cars at full speed in cross- 
 ing a highway, where it does not violate any statute law or municipal 
 regulation. A citizen driving along the road must yield the right of 
 way.^ He must look out for the trains at the crossings, before driving 
 on to the railroad track ; and if he see a train approaching, it is his 
 duty to wait until it has passed.^ 
 
 On the canals, passenger or packet boats are entitled to a preference 
 over freight boats ; ' and when boats meet, they are required to observe 
 the law and regulations, in passing each other ; — a law similar to that 
 of the road. In case of a collision, the injured party's right of action 
 depends upon the same principles. Being free from fault, he can 
 recover his damages against the negligent party.* 
 
 § 729. Duties by the Way. The carrier of passengers is bound to ob- 
 serve his established and advertised regulations in respect to stopping- 
 for refreshments, rest or other purposes by the way ; for the passenger 
 is supposed to take his passage with an understanding, from which the 
 law implies an agreement, entitling him to the accommodations offered.^ 
 The time of departure from the intermediate places on the line is fre- 
 quently the main inducement in the choice of conveyance ; and where 
 there is a general usage to allow certain intervals for refreshment, the 
 carriers cannot vary at their pleasure those usages which are perhaps a 
 reason for preferring their conveyance to the less convenient arrange- 
 ment of other proprietors. But if the coachman refuses to wait, and 
 actually leaves a passenger behind without good cause, it seems that the 
 latter has a remedy, either in withholding the remainder of the fare, 
 or, if that has all been paid, by an action on the case for a breach of 
 the contract, namely, to convey the party to such a place at such a time ; 
 in which he may recover the actual damages he has sustained.' 
 
 A through passenger is entitled to the benefit of a regulation of a rail- 
 road company, allowing him and other passengers to stop by the way 
 and afterwards renew the journey; and he is obliged to observe the reg- 
 ulation in its details, and where the rule requires it he must have his 
 ticket endorsed by the conductor in order to entitle him to get upon 
 another train and renew his journey upon the ticket.' Prima facie a 
 through ticket gives the right to a passage by a continuous journey ; ^ 
 
 1 Warner v. N. T. Central E. Co., 44 N. T. 465. 
 
 2 Ernst V. Hudson Eiver E. Co., 39 N. Y. 66; Wilds v. The Same, 24 N. Y. 430. 
 8 Farnsworth v. Groot, 6 Cowen, 698; Houghton v. Walce, 64 Barb. 613. 
 
 * Eathbun v. Payne, 19 Wend. 399; Dygert v. Bradley, 8 Wend. 469. 
 
 s Angell on Car. § 533. " Jeremy on Car. 23. 
 
 ' Denny v. N. Y. Central & Hudson E. E. Co., 5 Daly, 50. 
 
 8 Hamilton t. N. T. Central E. Co., 51 N. Y. 100; Barker v. Coflin, 31 Barb. 556; 
 
600 Law of Bailments. 
 
 and so the right to stop over on the 'n-ay, and afterwards renew the trip 
 on tlie same ticket, depends upon the proof of some contract, regulation 
 or custom allowing passengers that privilege. The ticket gives a right 
 to ride hy the usual and direct route ; it does not give the right to go by 
 an indirect and longer route. ^ 
 
 § 7-30. Carriers give special accommodations and privileges, a state- 
 room on a steamboat, or a drawing-room car on a railroad, for a certain 
 increase in the fare ; or charging specially for this additional accom- 
 modation.^ Railroads also sometimes issue tickets for specific 
 trains, bmding themselves to carry only on those trains. This course 
 of business falls vnthin recognized principles. But where a railroad 
 company sells tickets, giving a right to a passage on any regular train, 
 they are not at liberty to enforce a rule confining the use of the tickets 
 to any given train ; they must fulfill their contract.^ And they have the 
 right to insist that passengers shall fulfill theirs, the tickets issued 
 by them being treated as evidences of contract, and not as contracts.* 
 Both parties are, however, bound by any restrictive words stamped or 
 printed upon a ticket delivered to a passenger.^ 
 
 § 7.31. In passing a place of danger, it is the duty of a carrier by 
 coach to give the passengers notice thereof, so as to give them the 
 option of proceeding or not ; and this notice must be given in plain terms 
 so as to afford an opportunity of avoidmg the danger. The want of 
 such a notice, where it is the carrier's duty to give it, may be considered 
 by the jury as evidence of negligence in the driver or agent, such as to 
 make his principals liable in damages for any accident that may happen.* 
 
 When a carrier is not answerable for the consequences of an accident, 
 by reason of its being unavoidable, he is still bound to exercise the 
 greatest diligence and care to anticipate and prevent to the utmost of 
 his power subsequent injuries resulting or flowing from the same cause. 
 If his carriage be broken or disabled, he is bound to stop instantly and 
 have it repaired. The common carrier of goods, as we have seen, whose 
 boat is stove hi by runnmg on a concealed snag, under such circum- 
 stances as to make it an inevitable accident, is still answerable if he 
 
 Drew V. Central Pacific R. ]!. Co., .51 Cal. 425. See Elliott v. X. Y. C. & H. K. E. E. 
 Co., :,:i Hun, 7'.); Auerbacli v. N. T. C. & PI. R. R. R. Co., 89 X. Y. 2S1. 
 
 1 Bennett v. X. Y. Central & Hudson R. R. Co., 5 Hun. 599. 
 
 2 Ellis V. Xarragansett Steamship Co., Ill Mass. 146; Clark v. Burns, 118 Mass. 275; 
 Cox V. N. Y. Central & H. R. Co., 6 Sup. Ct. (T. & C.) 409. 
 
 2 Maroney v. Old Colony R., 106 Mass. 15."!. 
 
 ^ Cheney v. Boston E., 11 Met. 121; Van Buskirk v. Roberts, 31 X. Y. 661. 
 5 Barker v. Coflin, 31 Barb. 551!; Shedd v. Railroad Co., 40 Yt. 88; Boston R. v. 
 Proctor, 1 Allen, 2(i7; Boice y. Hudson River R. Co., 61 Barb. 611; .54 X. Y. 512. 
 ^ Dudley v. Smith, 1 Campb. 167; Jeremy on Car. 29. 
 
Caeeieks op Passengees. 601 
 
 ■subsequently neglect the proper means of securing and landing the cargo. 
 In like manner the carrier of passengers, though not responsible for an 
 accident, may be chargeable with the consequences resulting from it, 
 where it is within his power to prevent an injury after the accident has 
 occurred, and he fails to do so.^ Indeed the slightest degree of neglect 
 under such circumstances is suflcient to render him responsible in dam- 
 ages. His contract is not terminated by an inevitable accident ; and 
 hence he is still bound for the safety of his passengers, as far as human 
 prudence and foresight will go ; ^ increasurg the care with the danger.' 
 
 ( 
 
 V. Passexgee Caeeiees by Watee. 
 
 § 732. In most respects passenger carriers by water are bound by the 
 same duties and obligations as carriers by land ; but there are some 
 rules and regulations incident to the conveyance of passengers by water 
 which deserve a separate consideration. The law imposes a certain 
 responsibility upon the carrier in respect to the business, regarding the 
 mode of conveyance as important to be considered only in the applica- 
 tion of the principle.* 
 
 The duty to receive and carry safely is the same on the water as on 
 the land; and the rule of diligence is the same.^ In either case the car- 
 rier is answerable for the utmost care, vigilance and skill, on the part 
 of himself and all persons employed by him.' And this degree of care 
 and vigilance and skill is required in every branch of his business. He 
 must take care that his carriage is roadworthy, and that his vessel is 
 seaworthy. His agents must be competent to perform the duties they 
 are entrusted to discharge, and he is responsible for the fidelity and 
 skill with which they discharge them.' 
 
 Fewer cases have arisen against carriers of passengers on the seas 
 -than on the land, for the reason that personal injuries at sea, other 
 than those which are common to passengers and crew, seldom happen ; 
 and as to those which do occur, the master and sailors have every 
 motive which the love of life can furnish to avoid the dangers of the 
 voyage and bruig their vessel safely into port. Nevertheless, it does 
 occasionally happen that the master fails in his duty, by the omission 
 of that care and diligence which the law demands. 
 
 § 733. The statutes of New York make some provisions to secure the 
 
 1 Hall T. Connecticut Eiver Steamboat Co., 13 Conn. E. 319. 
 
 2 Stokes V. Saltonstall, 13 Peters, 181; 4 Esp. 259; 2.5 Maine, 39. 
 8 Indianapolis, etc., E. E. Co. v. Horst, 3 Otto, 93 U. S. E. 291. 
 * 13 Wend. R. 611. 
 
 6 2 Sumn. (Cir. Co.) E. 221. 
 
 « Farwell v. Boston & Worcester Eailroad Cor., 4 Met. II. 49. 
 
 US Peters E. 181. 
 
602 Law of Bailments. 
 
 safety of passengers on the navigable waters of the State ; imposing 
 certain rules of navigation, and requiring that boats carrying passengers 
 and navigated by steam shall be provided with life-boats ; prohibiting 
 steamboats from racing and from generating an undue or unsafe quantity 
 of steam.^ For a violation of these provisions the statute imposes certain 
 penalties upon the master, engineei' or person in charge ; and while these 
 provisions do not furnish the rule and measure of duty, under a contract 
 to carry passengers, the carrier is certainly liable for any injury caused 
 by, or m the act of, violating the statute. The master on board has the 
 control of the vessel, and must answer for mismanagement or neglect of 
 duty.- The other officers and servants, acting under his command, are 
 not liable on the contract ; they are only liable criminally.^ 
 
 The statute of the State also provides, that every person navigating 
 any boat or vessel for gain, who shall willfully receive so many passen- 
 gers, or such a quantity of other lading, on board of such boat or vessel 
 that by means thereof the same shall sink or overset, and the life of any 
 human being be thereby endangered, shall upon conviction be adjudged 
 guilty of a misdemeanor ; and the statute further provides that the cap- 
 tain or other person having charge of a steamboat used for the convey- 
 ance of passengers, and the engineer having charge of the boiler or any 
 apparatus used for the generation of steam, shall be adjudged guilty of a 
 misdemeanor, when from ignorance or gross neglect, or for the purpose of 
 excelling any other boat in speed, they shall create or allow to be created 
 such an undue quantity of steam as to burst the boiler or other 
 apparatus or machinery connected therewith, endangering human life.* 
 These provisions emphasize the duties of passenger carriers by water, 
 using steam as the motive power. 
 
 § 734. The rules of navigation, enforced by law, have grown up out 
 of the usages of the sea ; they have the same origin as our common law. 
 They are the result of experience, and principally designed to regulate 
 the course of steamboats and sailing vessels when they meet or pass 
 each other or lie at anchor. Quite recently, for the purpose of prevent- 
 ing collisions. Congress has prescribed by statute the lights to be carried 
 between srmset and sunrise by ocean-going steamers, and by steam- 
 boats and other craft navigating the bays, lakes, rivers or other inland 
 
 1 3 R. S. (7th ed.) 1992; Laws of 1809, Chap. 175, § 3; Laws of 1S44, Chap. 24S; 
 Laws of 1849, Chap. 411; Penal Code, §§ 197-199. 
 
 ^Denison v. Seymom-, 9 "Wend. 9, 11; Snell v. Pach, 1 John. R. 305; Fenton v. 
 Dublin Steam Packet Co., S Adolph. & Ellis, 835. 
 
 ' Noble V. Paddock, 19 "Wend. 456; Barnes v. Cole, 21 "Wend. 188. 
 
 * 3 R. S. of N". Y. 796, 5th ed.; Penal Code, § 359. See Penal Code, § 197; also, 
 §§ .360, 361. 
 
Caeeiebs of Passbis^gees. 603 
 
 waters of the United States ; the signals to be used in a fog or in heavy 
 weather ; and the rules to be observed in the sailing and steering of 
 steam or sail vessels when they are about to meet or cross each other's 
 path. The design of the statute is to specify and render certain the 
 lights to be carried, and the manner in which they shall be carried, by 
 different classes of boats and vessels, so that the position, character 
 and course of a vessel liiay be discovered and known by others on the 
 water.i The statute, being authorized by that provision of the Consti- 
 tution giving Congress power to regulate commerce, necessarily super- 
 sedes all pre-existing rules of local or State authority which are incon- 
 sistent with its provisions.^ 
 
 Prior to the statute, vessels were accustomed to carry in the night 
 time lights of warning to other vessels navigating the same waters ; 
 and the want of such a light where it was customary to carry one was 
 regarded as a circumstance of neglect, for which when it caused a 
 collision the carrier was answerable.' The difBculty was the want 
 of a uniform usage in respect to the lights and the mode of carrying 
 them ; * a want which is suppUed by the specific provisions of the 
 statute. 
 
 Where the statute is silent, a State law will remain in force ; e. g., a 
 State law requiring rafts of timber or lumber in motion, on the Hudson, 
 to show two red lights, one on each end of the raft, at least ten feet 
 high.° 
 
 § 735. One of the precautions, which the master of a vessel is bound 
 by the dictates of prudence to take to avoid collision in a dark night, is 
 to hang out a light in some conspicuous place, elevated so that it may 
 be seen afar or as early as possible by other vessels passmg that way. 
 And this duty is quite imperative when a vessel hes at anchor, at the 
 mouth of a harbor, in a much frequented track, or in the channel of a 
 river. Independent of any positive rule of law, prudence demands the 
 act as a natural means of safety ; » and now the statute, recognizing 
 the duty, requires expressly that all vessels at anchor in roadsteads or 
 
 1 E. S. of U. S. 820-825. U. S. Stat. 1890, Chap. 802. 
 
 •■iHofemanv. Union Ferry Co., 47 N. Y. 176; The Corsica, 9 Wall. 630; City of 
 Paris, 9 Wall. 634; Chesapeake, 1 Benedict E. 23, 30, 476. 
 
 s Eathbun t. Payne, 19 Wend. 399; Barnes v. Cole, 21 Wend. 188; Waring v. Clarke, 
 5 How. U. S. 441. 
 
 * Carsley v. White, 21 Pick. 254. _ 
 
 « 2 E. S. of N. T. 951, 5th ed. ; Laws of 1841, Chap. 05 ; Craig v. Kline, 6o Penn. ht. 
 
 e Simpson v. Hand, 6 Whart. (Penn.) E. 311, 324; Enowlton v. Sandford, 32 Mame, 
 148; Walker v. U. S. Ins. Co., 11 S. & E. 61; Secombe v. Wood, 2 Moody & K. 290. 
 
604 Law op Bailments. 
 
 fairways shall exhibit a white light, visible all round the horizon at a 
 distance of at least one mile.* 
 
 The lights must be carried in a proper manner, and in the absence of 
 positive law, the custom is to be followed. The general duty of the 
 master is to exercise due skill, care and caution in the navigation of his 
 vessel, and he is to hang out a light of warning where that is the most 
 appropriate and efficient, or the recognized mode of exercising the re- 
 quired care.^ He is bound to keep a vigilant lookout for the same 
 reason, and to use all proper precaution to avoid and prevent accidents ; 
 having done this, he is not liable for the results of an accident ; though 
 in a court of admiralty, where a collision occurs from misfortune, the 
 damages are apportioned between the vessels.' 
 
 § 736. Under the common law rule a party cannot recover damages 
 for an injury caused by a collision, where his own negligence contri- 
 butes to the collision ; ^ or where the collision results from the want of 
 care in the management of both vessels.^ 
 
 The owners of an injured vessel lying aground in or near the channel 
 of a navigable river may recover against the owners of a steamboat 
 driving against her, or colliding with her, notwithstanding there was 
 prior negligence in permitting the vessel to run aground ; this prior 
 negligence not being regarded as a proximate cause of the collision, 
 which might have been prevented by the exercise of reasonable care 
 and prudence in the management of the steamboat.' The officers in 
 command, having perfect control of her movements, are bound to use 
 timely care and foresight in passing the stationary vessel. 
 
 The master may be guilty of negligence and want of skill in selecting 
 the place where he wiU anchor his vessel, or in failing to exhibit proper 
 lights.' The case is different where his vessel runs and lies aground 
 without fault on his part ; and he may recover damages against the 
 owners of a vessel running foul of his, by reason of a failure on their 
 
 1 Eule Ten, E. S. of U. S. 822. U. S. Stat. 1890. Ch. 802, Art. 11. 
 
 - Steamboat Co. v. Wbilldin, 4 Harrmg. R. 228. On the Delaware the custom is 
 that vessels going against tide keep in shore, whilst those going with the tide keep out 
 in the strength of the tide. This rule qualifies the general rule that steamboats keep 
 to the right in passing. For a similar custom on the Thames, see ilalcomson v. Gen. 
 Steam Nav. Co., 4 English (Moak), 183. 
 
 3 Waring v. Clarke, 5 How. U. S. 441, 502. 
 
 * "Vauderplank v. Miller, 1 Moody & JI. 21. 
 
 ^ Lack V. Seward, 4 Carr. & P. 106; Vennal v. Garner, 1 Cromp. A- M. 21; Mellon 
 V. Smith, 2 E. D. Smith, 402; Steamboat Farmer v. McGraw, 2(3 Ala. 189. 
 
 8 Austin V. New Jersey Steamboat Co., 4:5 X. Y. 75; Holey v. Earle, 30 N. T. 208; 
 Davies v. Mann, 10 M. * W. 545. 
 
 ' Strout V. Foster, 1 How. U. S. S9; ante, § 735. 
 
Cabkiees of Passbngebs. 605 
 
 part to use all the precaution and care called for by the circumstances. 
 This rule was applied where the Ontario ran aground near the mouth 
 of the harbor of Cleveland, and within the piers ; and the Chesapeake 
 in entering the harbor ran against her in that position, in the night 
 time. Conceding that a vessel entering a harbor in the night time is 
 put upon her utmost vigilance, the court held that the bare possibility 
 that the master and men on the Chesapeake might have seen the 
 Ontario in time to have stood off without entering the harbor, did not 
 render the owners liable for the damages resulting from the colli- 
 sion.^ 
 
 " The law imposes upon all persons using a highway, whether upon 
 land or water, the obligation to exercise ordinary care to avoid inflicting 
 injury upon others. The degree of care which is thus imposed is not 
 capable of exact definition in words. It is sometimes said to be that 
 degree of care which a prudent man exercises about his own affairs. 
 This definition, and all similar ones, plainly do not greatly aid the in- 
 quiry as to the exact limits of the care to be exercised in any particu- 
 lar case. The difficulty is inherent in the subject. * * Under some 
 circumstances a very high degree of vigilance is demanded by the re- 
 
 1 Kelsey v. Barney, 12 If. Y. 425; The Scioto, Davies E. 359. 
 
 A steamer entering a harbor is bound to use every reasonable precaution to avoid a 
 collision with a vessellying at anchor; and the anchored vessel is bound to use the 
 diligence called for by her position. A decision rendered in the District Court at 
 Baltimore illustrates the rule: "In the United States District Court, Judge Giles 
 rendered a decision in the four cases of libel against the German steamship Numberg, 
 growing out of the collision between the steamship and the Norwegian bark Azow, 
 on the 8th of May, 1877. The principal libel was that of Morton Beyer, and other 
 owners of the bark, who claimed $35,000. It was stated In the libel that the bark 
 Azow, while going down Chesajfeake Bay, May 7, came to anchor. The steamship 
 Kumberg, coming up between 12 and 1 A. M., May 8, ran into the bark, the latter 
 s inkin g in a few minutes. Four of the crew of the bark were killed or drowned, and 
 the bark and cargo were lost. It was alleged that the bark had all the proper lights 
 set, and that the collision was caused by the fault of those in charge of the steamship. 
 The second libel was for $22,500, the value of the cargo of corn, shipped by Gill & 
 Fisher of Baltimore. The third libel was for $5,000, for personal injuries inflicted 
 by the collision, and the fourth, in a small amount of cargo shipped. The answer of 
 the owners of the steamship denies that the lights required by law were lighted on the 
 bark, or that she adopted any of the usual precautions to prevent a collision, or that 
 the collision was caused through any fault or carelessness in the management of the 
 steamer." Judge Giles, in deciding the cause, held, that usually the burden of proof 
 is on the vessel in motion, and that the question is whether she used due care; that 
 if she used due care, and the bark Azow failed to exhibit proper lights, that circum- 
 stance was to be considered as placing her in the wrong. He goes on to speak of the 
 absence of a fog, and of the moderate speed of the steamer; of the failure m duty ot 
 the lookout on the bark, and of her want of a light, as bearing on an 1 d.^termmmg 
 the fact of negligence on her part; dismissing the libel. 
 
606 Law of Bailments. 
 
 quirement of ordinary care. Where the consequence of negligence will 
 probably be serious injury to others, and where the means of avoiding 
 the infliction of injury upon others are completely within the party's 
 power, ordinary care requires almost the utmost degree of human vig- 
 ilance and foresight." ^ 
 
 § 737. The party suffering damages by a collision cannot recover 
 " where no fault can be found on either side ; " that is to say, no re- 
 covery can be had for damages resulting from inevitable accident; and 
 we And that the colliding of vessels is considered an inevitable accident, 
 when it results notwithstanding both use every proper precaution 
 against danger." 
 
 In determining the degree of skill and care required by law, it is a 
 rule that the master and men on board of a vessel cannot excuse their 
 failure to control her movement at the very moment of the collision, 
 where they have negligently brought her into a position rendering the 
 accident inevitable ; they are bound to exercise foresight to prevent 
 reaching a point, where her movement cannot be controlled.' They are 
 hound to use skill in the navigation of their vessel, and they have a 
 right to assume, and act upon the assumption that every other vessel 
 will be navigated with like skill, especially upon a river crowded with 
 craft of every kind ; * and so they are not chargeable with an accident 
 resulting from a sudden failure in the movement or control of another 
 boat.^ And it appears that a person on the vessel, or having property 
 on the vessel thus mismanaged, cannot recover against the other vessel 
 for injuries or losses arising from this fault in navigation ; a recovery 
 can only be had against the owners of the vessel which is in fault.' But 
 under the principle affirmed in this State, a passenger on the injured 
 vessel should not be considered as so identified with the vessel that 
 negligence in its management will defeat his recovery for a personal 
 injury caused by the colliding vessel.' If the collision results from 
 
 ^ Per JoHirsox, J., in Kelsey v. Barney, 12 jST. T. 425. 
 
 2 Grace Girdler, 7 Wall. 20:3; Fashion, 1 Kewb. Ail. 8; Steinbach v. Rae, 14 How. 
 TJ. S. ry.y2; The Mabey & Cooper, 14 Wall. 204; Union Steamship Co. v. 2\^. T. & Va. 
 Steamship Co., 24 How. 307; The Java, 14 Wall. 180; The Morning Light, 2 Wall. 
 550; The Ann Caroline v. Wells, 2 Wall. 5:38. 
 
 3 Crockett v. Newton, 18 How. IJ. S. 581; Austin v. X. J. Steamboat Co., 43 X. T. 
 75, 80. 
 
 * Beck V. East Eiver Ferry Co., 6 Eobt. K. 82. 
 
 5 Hoffman v. Union Ferry Co., 47 >f. T. 170. 
 
 <^ Simpson v. Hand, 6 Whart. 311; Kenuard v. Burton, 12 Maine, 39. 
 
 ' Chapman v. New Haven R. Co., 19 N". T. 341; Brown v. N". T. Central, 32 N. Y. 
 507; Webster v. Hudson Eiver Eoad, 38 N. T. 260; Eaton v. Boston & Lowell E., 11 
 Alloa, .-r;o. 
 
Caeeiers of Passengers. 607 
 
 jiegiigence on the part of both vessels, he has a right to recover against 
 both.i 
 
 § 738. The omission to comply with a statutory regulation or pre- 
 cautionary measure, directly contributing to an injury, deprives the neg- 
 ligent party of any claim to compensation.^ A failure to comply with 
 a prescribed rule of navigation, specifying the lights to be carried, is neg- 
 ligence ; and existing at the time of a collision, it raises a strong presump- 
 tion against the master and owners ; it casts upon them the burden of 
 showing that the injury did not result from the omission.^ The want 
 uf the required lights is of no avail, where it appears that the collision 
 resulted from other causes ; and where the evidence tends to show that 
 the collision resulted from other causes, it becomes a question of fact for 
 the jury whether the want of lights contributed to the injury.^ 
 
 A failure to carry the required lights in a fog does not absolve another 
 vessel from the duty of using all the usual and proper means to avoid 
 a collision, such as reversing the engines or changing the course. As 
 soon as the danger is discovered, both vessels are bound to accept *the 
 situation, and do all that can be done with safety to prevent injury ; 
 and if the vessel carrying proper lights fails in this duty, and a collision 
 results from such failure, the master and owners are liable for the re- 
 sulting damages. * * "If the absence of the proper signal lights, or 
 the attempt to traverse the harbor in a dense fog, did not cause the 
 ■collision or contribute to it, but the situation of the injured vessel was, 
 notwithstanding these circumstances, seen by and known to the collid- 
 ing vessel, and the collision could by the exercise of reasonable care and 
 skill on the part of the latter have been avoided, the injured vessel doing 
 all that could be done to avert the danger, the consequences must fall 
 upon the vessel by whose acts and neglects the injury was caused. The 
 damages m that case are attributable solely to the neglect and want of 
 care and skill of the colliding vessel."^ 
 
 § 739. When two steam vessels are meeting end on, or nearly end 
 on, so as to involve risk of collision, the helms of both must be put to 
 port, so that each may pass on the port side of the other ; ^ and the rule 
 
 1 Colegrove v. N. Y. & N. H. & Harlem K. Co., 20 N". Y. 492. See Bridge v. Grand 
 Junction E. Co., 3 Mees. & Wels. 244; Catlin v. Hills, 8 Com. Bench, 12:!; Child v. 
 Hearn, L. E. 9 Exch. 176; Lockhart v. Lichtenthaler, 46 Penn. St. 151. See also, 
 Hoffman v. Union Ferry Co., 47 N. Y. 176, 181. 
 
 2 Thorp V. Hammond, 12 Wall. 408. " Waring v. Clarke, 5 How. U. S. 441. 
 •• Whitehall Transp. Co. v. N. J. Steamboat Co., 51 N. Y. 369; 47 N". Y. 716. 
 
 " Per Allen, J., in Hoffman v. Union Ferry Co., 47 N. Y. 176, 184; The City of 
 Washington, 2 Otto, 31 ; The Sunnyside, 1 Otto, 208; The Gray Eagle, 9 Wall. 511. 
 
 "The America, 2 Otto, 432; The Galatea, 2 Otto, 439; The Vauderbilt, 6 Wall. 
 225; Union S. S. Co. v. X. Y. & Va. S. S. Co., 24 How. .307. 
 
608 Law of Bailments. 
 
 is the same where two sail vessels are meeting end on, or nearly end on, 
 or, as it is often termed, head and head, or nearly head and head.^ 
 These rules, reduced to the form of statute law in 1864, are often referred 
 to as the law of the road; they did not originate in the statute ; they 
 had their origin in the rules of navigation existing long before the 
 statute was passed.^ They apply when sailmg vessels or steam vessels 
 are approaching each other from opposite directions, head and head, so 
 as to involve risk of collision. Each vessel ports its helm and passes to 
 the right ; that is, on the port side of the other vessel. The rules do not 
 apply when vessels are meeting each other at right angles ; ° and they 
 do apply when vessels on different courses must cross so near that, by 
 
 1 The Nichols, 7 Wall. 656; The Johnson, 9 Wall. 146; The Annie Liudsley, 104 
 U. S. 1S.J. 
 
 2 The .Johnson, 9 Wall. 146, 150. Damages were claimed in this case on account of 
 a collision which occurred in the East Kiver on the 9th of December, 1863, when the 
 following Rules of Navigation were considered in force: — 
 
 "EtTLE 1. When steamers meet 'head and head,' it shall be the duty of each to 
 pass to the right, or on the larboard side of the other ; and either pilot, upon determin- 
 ing to pursue this course, shall give as a signal of his intention one short and dis- 
 tinct blast of his steam-whistle, which the other shall answer promptly by a similar 
 blast of the whistle. But if the course of each steamer is so far on the starboard of 
 the other as not to be considered by the rules as meeting ' head and head,' or if the 
 vessels are approaching in such manner, that passing to the right (as above directed) 
 is unsafe, or contrary to rule, by the pilot of either vessels, the pilot so deciding shall 
 immediately give two short and distinct blasts of the steam-whistle, which the other 
 pilot shall answer by two similar blasts of his whistle, and they shall pass to the left, 
 or on the starboard side of each other. 
 
 " Rule 2. When steamers are approaching each other in an oblique direction, they 
 will pass to the right, as if meeting ' head and head,' and the signal by whistle shall 
 be given and answered promptly, as in that case specified. 
 
 " Rule 3. If, when steamers are approaching each other, the pilot of either vessel 
 fails to understand the course or intention of the other, whether from the signals 
 being given or answered erroneously, or from other cause, the pilot so in doubt shall 
 immediately signify the same by giving several short and rapid blasts of the steam- 
 whistle, and if the vessels shall have approached within half a mile of each other, both 
 shall be immediately slowed to a speed barely sufficient for steerage-way, until the prop- 
 er signals are given, answered, and understood, or until the vessels shall have passed 
 each other. 
 
 " Rule 4. The signals, by blowing of the steam-whistle, shall be given and an- 
 swered by pilots, in compliance with these rules, not only when meeting ' head and 
 head,' or nearly so, but at all times when passing or meeting, at a distance within half 
 a mile of each other, and whether passing to the starboard or larboard. 
 
 " N. B. The foregoing rules are to be complied with In all cases, except when 
 steamers are navigating in a crowded channel or in the vicinity of wharves ; under 
 these circumstances steamers must be run and managed with great caution, sounding 
 the whistle as may be necessary, to guard against collisions or other accidents." 
 
 3 Hunt V. Hoboken Land & I. Co., 1 Hilton, 161, 165; 3 E. D. Smith, 144. 
 
Cakeiees of Passengers. 609 
 
 continuing their course they incur the risk of collision, head to head, or 
 bow to bo-w, or nearly so ; as where they are approaching each other 
 on oblique courses.^ 
 
 Independent of the act of Congress, steam vessels are regarded in the 
 light of vessels navigating with a fair wind, and are under obligation 
 to do whatever a sailing vessel going free or with a fair wind would be 
 required to do under similar circumstances. Having superior power 
 to direct and control their course and speed, they must, in approach- 
 ing them, take every precaution to keep out of the way .of sailing 
 vessels.'^ The rule of navigation permits a sailing vessel, when ap- 
 proaching a steamer, to hold on her course ; and obliges the steamer, 
 as a general rule, to keep out of the way.' 
 
 § 740. The rule of the road does not require vessels or steamers, in all 
 cases and under all circumstances, to pass each other on the right. 
 Being about to meet, each must take such a course and direction as will 
 be least likely to injure the other, and will be best calculated to avoid 
 a collision ; and that vessel or steamer which has the greatest facilities 
 for choosing and taking its adopted course, the most facile and available 
 motive power, and consequently the greater control over its own move- 
 ments, is called upon to give the preference to the other, and yield to it 
 in the choice of routes. This qualiflcation of the rule of the road has been 
 applied where a steamboat carrying passengers, coming up the Hudson 
 at full speed with the tide in her favor, met a smaller steamboat 
 encumbered with a tow, moving down the river about four miles an 
 hour, in a wide channel. The circumstances were considered such as 
 to require the steamboat moving with speed to avoid the other, and 
 hold her liable in damages for a neglect of this duty.' 
 
 Every circumstance is to be considered in determining the duty of 
 each vessel ; e. g., the tide, the wind, the relative position of the vessels, 
 and the usual course or custom of navigation pursued on that wa.ter.5 
 Due regard must be had to all the dangers of navigation, and to the 
 special circumstances which render a departure proper from the usual 
 
 1 Hunt T. Hoboken Land & I. Co., per Woodbufp, J., 3 E. D. Smith, 144, 147. 
 
 2 Hawkins v. D. & O. Steamboat Co., 2 Wend. 452; St. John v. Paine, 10 How. V. 
 S. 557; 9 Wall. 146, 153; N. Y. & Bait. Trans. Co. v. Phila., etc., N^av. Co., 22 How. 
 461; The Sea Gull, 23 Wall. 165; The Free State, 91 U. S. 200. 
 
 8N. T. & Liverpool U. S. Mail S. Co. v. Eumball, 21 How. U. S. 372, 383; The 
 Warrior, 4 English (Moak), 608; Beal v, Marohais, 8 English (Moak), 242; The Sea 
 Gull, 23 Wall. 165; The Adriatic, 107 U. S. 512; The Colorado, 91 U. S. 692. 
 
 * Blanchard v. N. J. Steamboat Co., 59 K T. 292; 3 N. T. S. C. (I. & C.) 771; 
 The St. John, 7 Blatch. 220; The Syracuse, 9 Wall. 672. 
 
 5 Malcomson v. Gen. Steam Nav. Co., 4 English (Moak), 183; The Velocity, Law 
 
 Eep. 3 P. C. 44, 49. 
 
 .39 
 
610 Law op Bailments. 
 
 rule of the road, or from the regulations for preventing collisions. 
 There being no dangers of navigation, and no special circumstances 
 justifying a departure from the ordinary rule, a vessel is bound to 
 follow the rule of navigation which is applicable to the situation.' 
 And yet a failure to comply with a rule of navigation, in a given par- 
 ticular, will not defeat a recovery for an injury not arising from the 
 ondssion,^ or AAliich ought to have been prevented by the other vessel. 
 
 The rules of navigation require that a moving vessel shall keep a 
 sufficient watch or lookout, properly placed, at night to guard against 
 the danger of a collision. But the usual rule does not apply, or does 
 not prevent a recovery of damages for an injury, where the collision 
 could not have been guarded against by a lookout, or where it is clear 
 that the want of one had no agency in causing the collision. '^ The kind 
 of lookout to be kept depends upon the presence of few or many 
 vessels, the darkness of the night and the rate of speed.* 
 
 § 741. It is proper for us in this connection to indicate the sources 
 ot the rules of navigation. A rule emanating from the Trinity House, 
 although it does not constitute a law pvi- se, is nevertheless regarded in 
 England as a rule to be observed, having the approbation of the best 
 masters, and being in most cases upheld by the court of admiralty.^ 
 The Trinity House was originally chartered and organized as a guild or 
 fraternity, under a religious name, for the advancement of commerce 
 and for the protection of ships and vessels by proper regulations. It 
 began as a society of good sailors and experienced masters and nautical 
 men, who were clothed with power to erect light-houses and other sea- 
 marks along the coast, to appoint pilots to condu.ct ships in and out of 
 the river Thames, to settle the rates of pilotage, and among other things 
 tn hear and determine certain complaints of officers and seamen, under 
 an appeal to the court of admiralty.'' It has been from time to time 
 
 1 The Warrior, 4 English (Moak), 608; Morton v. Hutchinson; The Falkland and 
 The Kestrel, 4 English (Moak), 191. 
 
 ^Whitehall Transp. Co. v. N. J. Steamboat Co., 51 N. Y. oijO; The Pennsylvania, 
 19 Wall. 12.J. 
 
 s The Farragut, 10 Wall. 334; Thorp v. Hammond, 12 Wall. 408; 10 How. U. S. 
 557; Blanchard v. N". J. Steamboat Co., 59 N. Y. 292; The Ottawa, 3 Wall. 269; The 
 Fannie, 11 Wall. 238; The Dexter, 23 Wall. 69; The Annie Lindsley, 104 U. S. 185; 
 The Nachoochee, 137 U. S. 330. 
 
 * The Iron Duke, 2 W. Rob. 377; Chamberlain v. Ward, 21 How. XJ. S. 548, 192; 
 N. Y. Transp. Co. v. Phila. Steam Kav. Co., 22 How. U. S. 461. 
 
 5 The Duke of Sussex, 1 Wm. Kob. E. 274; The Velocity, Law Rep. 3 C. P. 4 
 English (Moak), 183, 187. 
 
 ^ The society was chartered by Henry VIII., 1515, and established and confirmed 
 under the name of the Master, Wardens and Assistants of the Guild or Fraternity of 
 the Most Glorious and Undivided Trinity, and of St. Clement in the Parish of Dept- 
 
Caeeiees of Passengbes. 611 
 
 variously modified, and now acts in respect to the general subject 
 of navigation in a manner analogous to that of a board of merchants ; 
 its orders, without having the absolute and binding force of law, are 
 treated as rules of good seamanship, of authority so far as, and because 
 they are evidence of, the customary laws and usages observed by men 
 engaged in the business of navigation. The Trinity masters and breth- 
 ren still serve as a kind of advisory jury to assist on trials in the 
 court of admiralty.^ 
 
 Recent regulations for preventing collisions at sea, made by a British 
 order in council under an act of Parliament, have a more positive effect, 
 like the rules prescribed by our act of Congress ; '"■ and yet they are to 
 be interpreted like any other statute modifying, or in some cases ren- 
 dering more explicit, the existing rules of navigation." 
 
 § 7-t2. The duty of sailing vessels crossing each other's track has 
 been reduced by statute to this expression : " When two sail- vessels 
 are crossing so as to involve risk of collision, then, if they have the 
 wind on different sides, the vessel with the wind on the port side shall 
 keep out of the way of the vessel with the wind on the starboard side, 
 except in the case in which the vessel with the wind on the port side 
 is close-hauled, and the other vessel free, in which case the latter 
 vessel shall keep out of the way. But if they have the wind on the 
 same side, or if one of them has the wind aft, the vessel which is to 
 A^indward shall keep out of the way of the vessel which is to leeward." 
 Under this rule, it being the duty of one vessel to keep out of the way, 
 the other vessel is to keep her course ; * subject only to this qualifica- 
 tion, that due regard must be had to the dangers of the navigation, 
 and to the special circumstances which may render a departure from 
 the rule necessary to avoid immediate danger. 
 
 The combination of circumstances, in which two meeting vessels find 
 themselves, may be extensively varied by the state and direction of the 
 wind, and the relative position of the vessels towards the wind and 
 towards each other ; and hence the law of the sea is continually modi- 
 fled to meet these changing circumstances. The analogous law of the 
 road yields 'to emergencies, but not to so great an extent. In one case 
 
 ford, strand, in the County of Kent; and it was allowed to receive a certain duty 
 from ships for the support of lighthouses. 
 1 1 "Wm. Eob. E. 274. See McCullock's Dictionary; 4 English (Moak), 183, 187. 
 
 2 The "Eegulations for preventing Collisions at Sea" were made by an order in 
 council, under the Merchant Shipping Amendment Act of July 29, 1862, and act of 
 Congress was passed in 1864. See U.S. Stat. 1890. Gh. 802. 
 
 3 The Johnson, 9 Wall. 146; Steamship v. Eumball, 21 How. U. S. 372, 383; ante, 
 
 §§ 739, 734. 
 * E. S. of U. S. 823; Eules 17, 23 and 24. See U. S. Stat. 1890, Ch. 802. Art. 17. 
 
612 Law of Bailjients. 
 
 the presiding judge in a district court took tlie testimony of experi- 
 enced navigators, to tliis effect : " In our answer to former questions, 
 we have stated tlie rule or usage to be, that when two vessels are 
 approaching each other, both having the wind free, and consequently 
 the power of readily controlling their movements, the vessel on the 
 larboard tack should give way, and thus each pass to the right. This 
 rule should govern vessels too, sailing on the wind, and approaching 
 each other, when it is doubtful which is to windward. But if the vessel 
 on the larboard tack is so far to windward, that if both persist in their 
 course the other will strike her on the leeward side abaft the beam, or 
 near the stern, in such case the vessel on the starboard tack must give 
 way, as she can do so with greater facility and less loss of time and 
 distance than the other.^ These rules are particularly intended to 
 govern vessels approaching each other, under circumstances that pre- 
 vent their course and movements being readily ascertained with ac- 
 curacy ; for instance, in a dark night or dense fog. At other times, 
 circumstances may render it expedient and proper to depart from them ; 
 for we consider them all subordinate to the rule prescribed by com- 
 mon sense, and ai^plicable to all cases, under any circumstances, which 
 is that every vessel shall keep clear of every other vessel when she 
 has the power to do so, notwithstanding such other may have taken a 
 course not conformable to established usage. We can scarcely imagine 
 a case in which it would be justifiable to persist in a course, after it 
 had become evident that collision would ensue, if by changing such 
 course the collision could be avoided." ^ 
 
 The Trinity House regulations are of authority for the same reason 
 as decisions at common law ; not as making, but simply recognizing 
 the existing law of usage and custom.^ The decision of a court is the 
 higher and more solemn evidence, but still only an evidence or witness 
 of what the law is. In other words, the Trinity House regulations do 
 not purport to enact, but to state certain rules as recognized and 
 established by the usages of navigation.* 
 
 § 743. When two sailing vessels meet, having the wind fair, the rule 
 is, that each is to pass on the larboard hand. But if a vessel is going 
 close-hauled to the wind, and another meeting her is going free, the 
 rule at sea is, for the vessel meeting her to go to leeward ; and the 
 reason of it is, that otherwise the vessel going to windward would lose 
 
 1 See St. John v. Paine, 10 How. U. S. 557. 
 
 2 Lowry v. Steamboat Portland, 1 Law Eep. 313, 318, A. D. 1839. And see The 
 Elizabeth Jones, 111 U. S. 514. 
 
 3 Duke of Sussex, 1 W. Kob. E. 274; 2 Kent's Comm. 230. 
 ^ The Friends, 1 W. Rob. (N. A.) R. 478. 
 
Carkiees op Passengers. 613 
 
 her position, and could not get in again, without another tack, and it 
 would be an inconvenience to her, and not to the vessel going free. 
 But the vessel having the wind may either go to leeward or wind- 
 ward as she best can ; she is bound to suppose, as a general rule, that 
 the vessel going to windward will keep her position ; that is to say, the 
 ship which is going to windward is to keep to windward, and the ship 
 that has the wind free is to bear away.^ It is but a modtflcation of 
 this rule, that a vessel sailing before or with the wind should make 
 way for one that is sailing by or against it.'' For the law imposes 
 upon the vessel having the wind free or fair the obligation of taking 
 proper measures to get out of the way of the vessel that is close- 
 hauled, and of showing that she has done so, and if she does not the 
 owners of it are responsible for the loss which ensues.' 
 
 As vessels that meet at sea may be crossing each other's track in 
 every conceivable direction, it is impossible that any single rule should 
 embrace all cases. But the principle animating these rules of naviga- 
 tion seems to be, that each vessel shall do its endeavor to avoid collision, 
 and that that vessel shall give way or heave about to avoid the danger 
 which can do so most easily and with the least inconvenience or loss 
 of time.* On this ground, a vessel sailing with a fair wind and moving 
 more rapidly, and being more under the control of her officers and crew 
 than a vessel which has not the wind, is bound to give way. The 
 reason of this rule applies to steamboats at all times, since they have 
 always a propelling power, equal to a favorable wind, which renders 
 the vessel perfectly manageable.^ So, too, a vessel under sail must 
 
 1 Handaysyde and Others v. Wilson and Others, 3 Carr. & Payne K. 528. 
 
 2 Jameson v. Drinkald, 12 Moore E. 148. 
 
 'The "Woodrop Sims, 2 Dodson's Eep. 83; The Mary Eveline, 16 Wall. 348; St. 
 John V. Paine, 10 How. U. S. 557; The Ann Caroline, 2 Wall. 538; Bentley v. Coyne, 
 4 Wall. 509. 
 
 * 3 Kent's Comm. 230, 231; The Syracuse, 9 Wall. 672. 
 
 6 The Shannon, 2 Hagg. E. 173; N. T. & Bait. Transp. Co. v. Phila., etc., Kav. Co., 
 22 How. U. S. 461; St. John v. Paine, 10 id. 557; The Sea Gull, 23 Wall. 165; City 
 of Paris, 9 Wall. 634; The Free State, 91 U. S. 200; Hawkins v. Dutchess & Orange 
 Steamboat Co., 2 Wend. E. 452. 
 
 Action on the case for an injury to plaintiff's sloop by collision. 
 
 On the trial, it appeared that the vessels met just below the overslaugh below 
 Albany the sloop going down the river with a fair but light breeze at the rate of two 
 miles an hour; the steamboat going up the river at the rate of six or seven miles an 
 hour- the sloop had just crossed the bar in the usual channel, and necessarily ran 
 near the eastern shore; the ofBcers of both vessels hailed; the plaintiff on board of 
 his sloop called to the officers of the steamboat to stop the engine; the pilot of the 
 boat called to the plaintiff, who was at the helm of his sloop, to bear away ; the plaint- 
 iff did bear away, but as he had but Uttle headway on his vessel, he made but little 
 
614 Law op Bailments. 
 
 bear away from a vessel at anchor, because, being under motion, her 
 direction may be easily changed.^ 
 
 § 744. It is a rule of the Trinity House, adopted by the court 
 of admiralty, " that when steam vessels on different courses must 
 unavoidably and necessarily cross so near that by continuing their 
 respective courses there would be a risk of coming into collision, each 
 vessel shall put her helm to port so as always to pass on the larboard 
 side of each other." ^ And the rule is doubtless the same whether the 
 vessel is engaged in carrying passengers or freight, or whether it is 
 under the command of the master or a pilot, who is considered master 
 pro hac vice? In Denison v. Seymour, it is adjudged that the master 
 of a steamboat, employed in the transportation of passengers, like the 
 master of a vessel engaged in the merchant service, is answerable for 
 the diligence of all to whom is entrusted the management of the vessel, 
 and that he is liable for any injury done by running the steamboat 
 navigated by him against and sinking another vessel, although the 
 pilot, who received his appointment directly from the owners, is at the 
 wheel steering the boat, and has at the time of the accident the exclu- 
 sive control and direction of her course.^ In another case, against the 
 master of a steamboat for running foul of a sloop on the Hudson river, 
 the recorder, before whom the cause was tried, charged the jury that 
 the defendant '•nzs, prima facie liable for the injury, and that it lay upon 
 him to show that it did not arise from negligence on the part of those 
 who navigated the steamboat; that the question of negligence was 
 a question of fact for the jury, and if they were of opinion that the 
 plaintiff's vessel might have been avoided by the exercise of due 
 diligence and watchfulness, plaintiff would be entitled to a verdict, 
 unless by reason of the darkness of the night the accident was 
 
 progress ; the engine of the steamboat was stopped, but the boat was not backed, as 
 she might have been, and struck with her bow the waist of the plaintiff's sloop and 
 injured her materially. By the court: "The real question is, whether the officers of 
 the steamboat were not guilty of negligence in refusing or neglecting to exercise the 
 power they possessed, which would have prevented the injury. The boat was per' 
 fectly under the control of its officers, the sloop was not; the officers of the boat did 
 not endeavor to avoid the collision, which they might have done either by backing 
 their boat or by going on the west side of the sloop, where there was room enough 
 and water enough. The sloop was compelled to go near the east shore, in order to 
 pass the bar with safety, and after passing the bar, the captain did all in Ms power to 
 avoid the collision by endeavoring to go west of the boat ; but, from the slow motion 
 of the sloop, this was impracticable before the boat struck him.'' 
 
 1 The Neptune, 1 Dod. Adm. Kep. 4U7 ; 3 Kent's Comm. 231 ; The Virginia Ehrman, 
 97 U. S. 309. 
 
 2 Duke of Sussex, 1 W. Eobinson (N. A.), R. 274. 
 
 ^ Bussey v. Donaldson, 4 Dallas, 200. ■* Denison v. Seymour, Wend. R. 9. 
 
Caebiees or Passbngeks. 615 
 
 caused by the absence of a signal light on board of the sloop, there 
 being no Want of care on the part of those iu charge of the steam- 
 boat; and the charge was sustained.^ The owners are responsi- 
 ble for damages occasioned by the mismanagement of a ship, though 
 under the care of a regular pilot and navigated in obedience to 
 his directions; and the pilot is answerable to them.^ It is true 
 the owners have no voice in the choice of the pilot, and it is also true 
 that the vessel is navigated on their account, and necessarily subject to 
 the law of the port or place; it being the duty of the master to put his 
 vessel in charge of a pilot as required by law. Being in charge of the 
 vessel, the pilot is liable as if he were a common carrier ; and the 
 master, being excluded from any control, is not, for the time being, 
 responsible for the movements of the vessel.^ 
 
 § 745. The principles of liability in cases of collision as administered 
 in courts of admiralty are briefly stated by Sir William Scott in the 
 case of the Woodrop Sims : There are four possibilities under which an 
 accident of this sort may occur. In the first place, it may happen 
 without blame being imputable to either party, as where the loss is 
 occasioned by a storm, or any other vis major ; in that case the mis- 
 fortune must be borne by the party on whom it happens to light, the 
 other not being responsible to him in any degree. Secondly, a mis- 
 fortune of this kind may arise where both parties are to blame, where 
 there has been a want of due diligence on both sides ; in such a case the 
 rule of law is, that the loss must be apportioned between them, as hav- 
 ing been occasioned by the fault of both of them. Thirdly, it may hap- 
 pen by the misconduct of the suffering party only ; and then the rule 
 is, that the sufferer must bear his own burthen. Lastly, it may have 
 been the fault of the ship which ran the other down ; and in this case 
 the injured party would be entitled to an entire compensation from the 
 other.* 
 
 § 746. At common law the plaintiff cannot recover damages for an 
 
 1 Foot V. Wiswall, 14 John. E. 304. 
 
 % Neptune the Second, 1 Dodson R. 457. The employment and regulation of pilots 
 is left to the State laws; E. S. of U. S. 823; Commissioners of Pilots v. Pacific Mail 
 S. Co., 52 N". Y. 609; but it is settled that Congress has the power to legislate on the 
 subject, and thus suspend the State law. Henderson v. Spofford, 59 N. T. 131. 
 
 8 Brown v. Elwell, 60 N. Y. 249; Gillespie v. Zittlosen, 60 N. Y. 449; Smith v. 
 Coudry, 1 How. U. S. 28. The court in this case gives efifect to the English statute 
 and the law of the port. See also, Carmthers v. Sydebotham, 4 Maule & S. 577; 
 Attorney-General v. Case, 3 Price, 302; 3 Kent's Comm. 176, and notes; Cooley v. 
 Port Wardens, 12 How. U. S. 299. That the master is not liable, see Snell v. Eich, 1 
 John. E. 304; but seeDenison v. Seymour, 9 Wend. 9, 11; Yates v. Brown, 8 Pick. 
 22. * 2 Dodson, E. S3. 
 
616 Law op Bailments. 
 
 injury by collision or otherwise, attributable in any degree to his own 
 neglect or want of due care, unless the defendant has been guilty of 
 some intentional wrong.^ In a case of mutual negligence, the com- 
 mon law does not interpose in order to make an equitable partition of 
 the damages, as is frequently done in courts of admiralty.^ If the 
 plaintiff has exercised ordinary care, and the defendant has been guilty 
 of negligence causing the injury, the action for damages may be sus- 
 tained." But the plaintiff cannot recover damages for an injury sus- 
 tained by him in the act of resisting the defendant, or preventing him 
 from the exercise of his legal right ; as where the master of a freight 
 boat on the canal refused to give the master of a packet boat carrying 
 passengers the preference given him by statute in passing a lock, and 
 a collision ensued causing a slight injury to tlie freight boat.* 
 
 § 747. The manner of landing passengers from steamboats navigat- 
 ing the waters of this State is prescribed in certain cases by statute, 
 requiring that, where the landing is effected by the use of a small 
 boat, the engine of the steamboat shall be stopped while the passenger 
 is getting into the small boat or out of it on board of the steamboat, 
 and during the passage of the small boat to and from the shore, with 
 this exception, that during such landing and receiving of passengers, 
 the engine of the boat may be put in motion in order to keep the steam- 
 boat in proper direction, and prevent her from drifting or being driven 
 on shore, and also in order to give sufficient force to carry the small 
 boat to the shore.*^ No passenger is permitted to enter the small boat, 
 for the purpose of being landed, until it is completely afloat and wholly 
 disengaged from the steamboat, except by a painter ; the small boat 
 to be supplied by a good and sufficient pair of oars, and to be signaled 
 to the steamboat on leaving the shore and when she arrives at it." 
 These and similar enactments serve but to particularize and specify 
 duties already imposed upon the carrier, or involved in the general 
 principle establishing his liability. 
 
 The same remark is applicable to the several acts of Congress, regu- 
 lating the carriage of passengers in merchant vessels, restricting the 
 number to be received to the reasonable capacity of the vessel, and requir- 
 ing that the vessels shall be properly ventilated, and adequately supplied 
 with provisions for the voyage. Tlie duties of the carrier are minutely 
 
 1 Barnes v. Cole, 21 Wend. K. 1S8; ', Hill K. 282. 
 
 2 Harlow v. Humiston, 6 Cowen E. 189; .5 liill E. 283, note a. 
 
 " 6 Cowen E. 192; Eathbun v. Payne, 19 Wend. E. 399; 1 Cowen R. 78. 
 ' Farns worth v. Groat, Cowen E. 698. The navigation of the canals is regulated 
 very minutely by the statutes, 1 R. S. 271, 3d ed.; 1 E. S. C70, 7th ed. 
 6 2 E. S., 949, 5th ed. ; 3 id. 1992, 1993, 7th ed. 6 ijem. 
 
Caeeiers of Passengees. 617 
 
 specified, and penalties are imposed for the violation of them, so as 
 to afford to the public a sufficient guaranty for their fulfillment, and 
 thereby to counteract the carrier's temptation to crowd a great number 
 of passengers, frequently emigrants of the poorer class, into a small 
 vessel, exposing them to the diseases incident to a sea voyage, in an 
 over-crowded and badly ventilated vessel. It was found by experi- 
 ence that the passenger's remedy against the carrier on his contract 
 was not sufficient protection against this kind of imposition ; and hence 
 the statute law has provided a means of vindictive punishment, in the 
 shape of penalties, thus making the carrier's avarice and caution the 
 pledge of fidelity in the discharge of his duties. In this way his love 
 of gain is arrayed against itself, and made to neutralize its vicious 
 properties.^ 
 
 § 748. Steam vessels are subject to a further and difEerent kind of 
 temptation, as well as to other and more numerous dangers. Accord- 
 ingly, those acts of Congress which provide for the better security of 
 the lives of passengers on board of vessels, propelled in whole or in 
 part by steam, are of a much wider scope. They provide that such 
 vessels shall be enrolled and licensed ; that their boilers and machinery 
 shall be duly inspected once every six months ; that a certificate of 
 such inspection shall be given and posted up in some conspicuous part 
 of the boat ; that the owners of such licensed boats shall employ a 
 competent number of experienced and skillful engineers; that the 
 steam shaU be regulated and kept down in a particular manner ; that 
 every steam vessel engaged in the transportation of freight or passen- 
 gers at sea or on the lakes shall carry two or more yawls or long- 
 boats, according to her tonnage, each of which shall be competent to 
 carry at least twenty persons ; that each vessel shall be furnished 
 with a suction hose and fire-engine and hose suitable to be worked in 
 case of fire ; that each vessel shall carry signal lights during the night ; 
 that a failure in these duties shall be visited by penalties and by in- 
 dictment ; that every captain, engineer, pilot or other person employed 
 on such steam vessel by whose misconduct, negligence or inattention 
 to his or their respective duties the life of any person on board may 
 be destroyed, shall be deemed guilty of manslaughter, and on con- 
 viction sentenced to confinement at hard labor for a period of not more 
 than ten years ; and that in all actions against the owners of steam- 
 boats for injuries arising to person or property from the bursting 
 of the boiler of any steamboat, or the collapse of a flue, or other 
 injurious escape of steam, the fact of such accident shall be taken as 
 
 1 See acts of 1847, 184S, 1849, and E. S. of U. R. 825, 869. 
 
618 Law of Bailments. 
 
 fnO. prima facie evidence, sufficient to charge the defendant, or those 
 in his employment, with negligence, until he shall show that no 
 negligence has been committed by him or those in his employment.^ 
 Though these provisions do not establish any new principle of respon- 
 sibility, they are of great importance as pointing out the particulars of 
 the carrier's duty and furnishing to the public the means for its enforce- 
 ment. As between the carrier and the passenger, a failure to comply 
 with them is evidence of neglect, which in most cases of injury casts 
 upon the carrier the burden of showing that the injury did not occur 
 in consequence of his neglect or want of due diligence. 
 
 § 749. These .statutes were not intended to limit the common law 
 liability of ship-owners, as carriers of passengers. Their object was to 
 provide additional safeguards and better security for the lives of passen- 
 gers on steam vessels ; and to secure the observance of the law and the 
 exercise of a vigilant supervision and care, in respect to the construc- 
 tion and equipment and management of steam- vessels, the owners are 
 charged with an absolute liability, when passengers sustain injury 
 from any neglect or failure to comply with the terms of the law.^ The 
 statute providing for the inspection of boilers does not in any manner 
 limit the liability of the owners for their safety ; and a compliance with 
 the statute does not even remove the presumption of negligence aris- 
 ing from the bursting of a boiler.^ 
 
 § 750. In order that the master may properly discharge the import- 
 ant and responsible duties imposed upon him, the law clothes him with 
 authority to control the movements of his vessel, and to give directions 
 in respect to the government of passengers and crew. Especially in 
 cases of emergency, he is necessarily invested with large discretionary 
 power ; since obedience to his commands is often the only means of 
 safety for the ship. But the master is bound in all cases to provide 
 for the comfort and convenience of the passengers on board, by such 
 attention as may mitigate the evils of a dangerous or protracted 
 voyage.* 
 
 It is the duty of the master of a vessel to take care that she be tight 
 and staunch and seaworthy at the commencement of each voyage, 
 and appropriately furnished with the tackle and apparel necessary for 
 
 ' See acts of 1838, 184;!, E. S. of U. S. 8.")7. As to the criminal liability of a carrier 
 for the killing of a person by reason of the overloading of a passenger vessel, see N. 
 V. Penal Code, § 197. As to liability for death caused by the bursting of the boiler 
 -^' 1 passenger boat, see N. Y. Penal Code, § 198. 
 
 ^ Carroll v. Staten Island R. R. Co., .")8 X. Y. 12G, 139. 
 
 8 Caldwell v. New Jersey Steamboat Co., 47 K. Y. 282, 292. 
 
 * Chamberlain v. Chandler, 3 Mason R. 242 ; 1 id. 508. 
 
Caeriees op Passengers. 61& 
 
 her safe navigation ; ^ to sail at the time appointed and in the manner 
 approved by skillful navigators ; to pursue the direct course of the 
 voyage without deviation ; ^ and so far as possible to bring his vessel 
 through the perils of the sea safely into port. * For the proper discharge 
 of his dif&cult duties, it is necessary that the master be a person of ex- 
 perience and practical skill in the art of navigation ; that he possess the 
 intellectual and moral power of commanding and governing his vessel, 
 and that he be clothed with the authority to meet and cope with the 
 dangerous vicissitudes of the voyage, to the best advantage. For this 
 purpose, while at sea, he has something like autocratic power in the 
 government of passengers as well as the crew, to the end that he may 
 properly direct and control the movements of the vessel. * 
 
 1 Wedderbum v. Bell, 1 Campb. E. 1. 
 
 2 6 Bing. R. 716. 
 
 3 Abbott on Ship. 340. 
 
 4 3 Kent's Comm. 159. 
 
Jrl 
 
 APPENDIX. 
 
 LEGISLATIVE ENACTMENTS AND NOTES. 
 
 FROM THE PENAL CODE OF THE STATE OF NEW YORK. 
 
 CHAPTER XIII. 
 
 FEATJDTJLENT ISSUE OP DOCUMENTS OF TITLE TO MBKCHAlTOISE.l 
 
 Section 628. Issuing fictitious bills of lading, etc. 
 
 629. Issuing fictitious warehouse receipts. 
 
 630. Erroneous bills of lading or receipts, issued in good faith, excepted. 
 
 631. Duplicate receipts must be marked " duplicate." 
 
 632. Selling, hypothecating or pledging property received for transportation 
 
 or storage. 
 
 633. Bills of lading or receipts issued by warehousemen must be canceled on 
 
 redelivery of the property. 
 
 634. Property demanded by process of law. 
 
 § 628. Issuing fictitious bills of lading, etc A person, being the 
 
 master, owner or agent of any vessel, or officer or agent of any rail- 
 way, express or transportation company, or otherwise heing or repre- 
 senting any carrier, who delivers any bill of lading, receipt or other 
 voucher, by which it appears that merchandise of any kind has been 
 shipped on board a vessel, or delivered to a railway, express or trans- 
 portation company, or other carrier, unless the same has been so shipped 
 or deUvered and is at the time actually under the control of such carrier, 
 or the master, owner or agent of such vessel, or of some officer or agent 
 of such company, to be forwarded as expressed in such bill of lading, 
 receipt or voucher, is punishable by imprisonment not exceeding one 
 year, or by a fine not exceeding one thousand dollars, or by both. 
 
 § 629. Issuing fictitious warehouse receipts.— A person carrying on the 
 business of a warehouseman, wharfinger, or other depositary of prop- 
 erty, who issues any receipt, bill of lading or other voucher for mer- 
 chandise of any kind which has not been actually received upon the 
 
 > Chapter 326 of the Laws of 1858, and Chapter 440 of the Laws of 1866, which are 
 the sources of this statute, were repealed by Chapter 693 of the Laws of 1886. 
 
622 Appendix. 
 
 premises of such person, and is not under his actual control at the time 
 of issuing such instrument, whether such instrument is issued to a per- 
 son as being the owner of such merchandise, or as security for any 
 indebtedness, is punishable by imprisonment not exceeding one year, or 
 by a fine not exceeding one thousand dollars, or by both. 
 
 § 630. Erroneous bills of lading or receipts, issued in good faith, excepted.— 
 No person can be convicted of an ofEense under the last two sections, 
 for the reason that the contents of any barrel, box, case, cask or other 
 vessel or package mentioned in the bill of lading, receipt or other 
 voucher did not correspond with the description given in such instru- 
 ment of the merchandise received, if such description corresponds 
 substantially with the marks, labels or brands upon the outside of such 
 vessel or package, unless it appears that the defendant knew that such 
 marks, labels or brands were untrue. 
 
 § 631. Duplicate receipts must be marked " dupUcate."— A person men- 
 tioned in sections six hundred and twenty-eight and six hundred and 
 twenty-nine, who issues any second or duplicate receipt or voucher, of 
 a kind specified in those sections, at a time while a former receipt or 
 voucher for the merchandise specified in such second receipt is out- 
 standing and uncanceled, without writing across the face of the same 
 the word " duplicate," in a plain and legible manner, is punishable by 
 imprisonment not exceeding one year, or by a fine not exceeding one 
 thousand dollars, or by both. 
 
 § 632. Selling, hypothecating or pledging property received for transporta- 
 tion or storage. — A person mentioned m sections six hundred and twenty- 
 eight and six hundred and twenty-nine, who sells or pledges any mer- 
 chandise for which a bill of lading, receipt or voucher has been issued 
 by him, without the consent in writing thereto of the person holding 
 such bill, receipt or voucher, is punishable by imprisonment not exceed- 
 ing one year, or by a fine not exceeding one thousand dollars, or by both. 
 
 § 633. Billof lading or receipt issued by warehouseman must be canceled 
 on redehvery of the property, — A person mentioned in section three 
 hundred and twenty-nine, who delivers to another any merchandise for 
 which a bill of lading, receipt or voucher has been issued, unless such 
 receipt or voucher bears upon its face the words "not negotiable," 
 plainly written or stamped, or unless such receipt is surrendered to be 
 canceled at the time of such delivery, or unless, in the case of a partial 
 delivery, a memorandum thereof is indorsed upon such receipt or 
 voucher, is punishable by imprisonment not exceeding one year, or by 
 a fine not exceeding one thousand dollars, or by both. 
 
 § 634. Property demanded by process of law. — The last two sections do not 
 apply to any case where property is demanded by virtue of legal process. 
 
FROM THE STATUTES OF THE UNITED STATES, 
 
 PASSED AT THE FIRST SESSIOIST OF THE FIFTY-FIRST 
 CONGRESS, 1889-1890. 
 
 CHAPTER 802. 
 
 AN ACT TO ADOPT EEGXJLATIOlSrS FOE PREVENTING COLLISIONS AT 
 
 SEA.l 
 
 Approved August 19, 1890. 
 
 Be it enacted by the Senate and Souse of Representa- 
 tives of the United States of America in Congress assem- 
 bled, That the following regulations for preventing Regulations for 
 collisions at sea shall be followed by all public and ions at sea. 
 private vessels of the United States upon the high seas 
 and in all waters connected therewith, navigable by 
 sea-going vessels. 
 
 PEBLIMINAET. Preliminary. 
 
 In the following rules every steam- vessel which is Meaning of terms. 
 
 under sail and not under steam is to be considered a 
 
 sailing vessel, and every vessel under steam, whether "SaiUng vessel." 
 
 under sail or not, is to be considered a steam- vessel. " steam-vessel." 
 
 The word " steam- vessel " shall include any vessel Whafsteam-ves- 
 ,,,,,. sel" includes, 
 
 propelled by machinery. 
 
 A vessel is " under way " within the meaning of " under way." 
 
 these rules when she is not at anchor, or made fast to 
 
 the shore, or aground. 
 
 EtTLES COSrCEENTNG LIGHTS, AND SO FORTH. Rules concerning 
 
 lights, etc. 
 
 The word "visible" in these rules when applied to Meaning of "vis- 
 lights shall mean visible on a dark night with a clear 
 atmosphere. 
 
 1 This enactment is a substitute for section 4233 of the Revised 
 Statutes of the United States, containing rules for preventing col- 
 lisions on the water, and is an amplification of that section, with 
 certain modifications and changes. See R. S. of U. S., 820-825. 
 
 ible.' 
 
624 
 
 U. S. Statutes. 
 
 Period of compli- 
 ance. 
 
 Liglits of steam- 
 vessel imder way. 
 
 White light for- 
 ward. 
 
 Visibility. 
 
 Green light, star- 
 board side. 
 
 Visibility. 
 
 Ked light, port 
 
 side. 
 
 Visibility. 
 
 Inboard screens 
 for green and red 
 lights. 
 
 Additional white 
 lights 
 
 Position and dis- 
 tance of two white 
 lights. 
 
 Article 1. The rules concerning lights shall be com- 
 plied with in all weathers from sunset to sunrise, and 
 during such time no other lights which may be mis- 
 taken for the prescribed lights shall be exhibited. 
 
 Akt. 2. A steam-vessel when under way shall carry — 
 (a) On or in front of the foremast, or if a vessel without 
 a foremast, then in the fore, part of the vessel, at a 
 height above the hull of not less than twenty feet, and 
 if the breadth of the vessel exceeds twenty feet, then 
 at a height above the hull not less than such breadth, 
 so, however, that the light need not be carried at a 
 greater height above the hull than forty feet, a bright 
 white light, so constructed as to show an unbroken 
 light over an arc of the horizon of twenty points of the 
 compass, so fixed as to throw the light ten points on 
 each side of the vessel, namely, from right ahead to 
 two points abaft the beam on either side, and of such a 
 character as to be visible at a distance of at least five 
 miles. 
 
 (b) On the starboard side a green light so constructed 
 as to show an unbroken light over an arc of the horizon 
 of ten points of the compass, so fixed as to throw the 
 Ught from right ahead to two points abaft the beam on 
 the starboard side, and of such a character as to be 
 visible at a distance of at least two miles. 
 
 (c) On the port side a red light so constructed as to 
 show an unbroken light over an arc of the horizon of 
 ten points of the compass, so fixed as to throw the 
 light from right ahead to two points abaft the beam on 
 the port side, and of such a character as to be visible 
 at a distance of at least two miles. 
 
 (d) The said green and red side-lights shall be fitted 
 with inboard screens projecting at least three feet for- 
 ward from the light, so as to prevent these lights from 
 being seen across the bow. 
 
 (e) A steam- vessel when under way may carry an 
 additional white light similar in construction to the 
 light mentioned in subdivision (a). These two lights 
 shall be so placed in line with the keel that one shall 
 be at least fifteen feet higher than the other, and in 
 such a position with reference to each other that the 
 lower light shall be forward of the upper one. The 
 
Chapter 802. — Collisions at Sea. 625 
 
 vertical distance between these lights shall be less than 
 the horizontal distance. 
 
 Art. 3. A steam-vessel when towing another vessel steam-vessel when 
 shall, in addition to her side-lights, carry two bright ^5^""^ ^''°"'*'' ''®^" 
 white lights in a vertical line one over the other, not Lights, 
 less than six feet apart, and when towing more than when towing 
 one vessel shall carry an additional bright white light ™AddmomiUght. 
 six feet above or below such light, if the length of the 
 tow measuring from the stern of the towing vessel to 
 the stern of the last vessel towed exceeds six hundred 
 feet. Each of these lights shall be of the same con- Character and 
 struction and character, and shall be carried in the ^°^' °°° ^ ' 
 same position as the white light mentioned in article 
 two (a), excepting the additional light, which may be 
 carried at a height of not less than fourteen feet above 
 the hull. 
 
 Such steam- vessel may carry a small white light Small white light 
 abaft the funnel or aftermast for the vessel towed to ^^^^^' 
 steer by, but such light shall not be visible forward of visibility restriot- 
 the beam. ®'^- 
 
 Art. 4. (a) A vessel which from any accident is not Vessel not under 
 under command shall carry at the same height as a 
 white light mentioned in article two (a), where they wute light, 
 can best be seen, and if a steam- vessel in lieu of that steam-vessel not 
 
 ' under control. 
 
 light, two red Ughts, in a vertical line one over the Two red lights, 
 other, not less than six feet apart and of such a char- 
 acter as to be visible all around the horizon at a dis- 'Visibility. 
 tance of at least two miles ; and shall by day carry in Day signals, 
 a vertical line one over the other, not less than six feet 
 apart, where they can best be seen, two black balls or Two black balls, 
 shapes, each two feet in diameter. 
 
 (b) A vessel employed in laying or in picking up a Telegraph cable 
 telegraph cable shall carry in the same position as the ^igfit lights, 
 white light mentioned in article two (a), and if a steam- 
 vessel in lieu of that light, three lights in a vertical 
 line one over the other, not less than six feet apart. 
 The highest and lowest of these lights shall be red, and 
 the middle light shall be white, and they shall be of 
 such a character as to be visible all around the horizon, 
 at a distance of at least two miles. By day she shall DaysignaU. 
 carry in a vertical line, one over the other, not less than 
 six feet apart, where they can best be seen, three 
 
 40 
 
626 U. S. Statutes. 
 
 shapes not less than two feet in diameter, of whicli the 
 highest and lowest shall be globular in shape and red 
 in color and the middle one diamond in shape and white. 
 
 Signals only to be (e) The vessels referred to in this article, when no.t 
 ingway. ' making way through the water, shall not cany the 
 
 side-lights, but when making way shall carry them. 
 
 Meaning of day (cl) The lights and shapes required to be shown by 
 this article are to be taken by other vessels as signals 
 that the vessel showing them is not under command, 
 and cannot therefore get out of the way. 
 
 Not distress sig- These signals are not signals of vessels in distress 
 and requiring assistance. Such signals are contained 
 in article thirty-one. 
 
 Lights for sailing jViiT. 5. A Sailing vessel under way and any vessel 
 
 vessel under way, , . , i , n ,i t i j. 
 
 and towed vessel, being towed shall carry the same lights as are pre- 
 scribed by article two for a steam- vessel under way, 
 with the exception of the white lights mentioned there- 
 in, which they shall never carry. 
 Small vessels un- Art. 6. Whenever, as in the case of small vessels 
 
 derwayinbadwea- ^^^^^. ^^^^ during bad weather, the green andredside- 
 Portabie side lights cannot be fixed, these lights shall be kept at 
 
 ete. ^ ^ ^"^ ^' hand, lighted and ready for use; and shall, on the 
 approach of or to other vessels, be exhibited on their 
 respective sides in sufficient time to prevent collision, 
 in such manner as to make them most visible, and so 
 that the green light shall not be seen on the port side 
 nor the red light on the starboard side, nor, if prac- 
 ticable, more than two points abaft the beam on their 
 respective sides. 
 Portable lanterns To make the use of these portable lights more certam 
 and easy the lanterns containing them shall each be 
 painted outside with the color of the light they re- 
 spectively contain, and shall be provided with proper 
 screens. 
 Small steam-ves- Aet. 7. Steam- vessels of less than forty, and vessels 
 
 vessels under oars Under oars or sails of less than twenty tons, gross 
 
 or sails, under way. tonnage, respectively, when under way, shall not be 
 
 Lieu lights they obliged to carry the lights mentioned in article two (a), 
 
 (b) and (c), but if they do not carry them they shall be 
 
 provided with the following lights : 
 
 steam-vessels less First. Steam- vessels of less than forty tons shall 
 than lorty tons. 
 
 ^ carry — 
 
Chapter 802. — Collisions at Sea. 627 
 
 (a) In the fore part of the vessel, or on or in front of Forward light, 
 the funnel, where it can best be seen, and at a height 
 
 above the gunwale of not less than nine feet, a bright 
 white light constructed and fixed as prescribed in 
 article two (a), and of such a character as to be visible 
 at a distance of at least two miles. 
 
 (b) Green and red side-lights constructed and fixed Sida lights, etc. 
 as prescribed in article two (b) and (c), and of such a 
 
 character as to be visible at a distance of at least one 
 
 mile, or a combined lantern showing a green light and Combined lantern. 
 
 a red light from right ahead to two points abaft the 
 
 beam on their respective sides. Such lantern shall be 
 
 carried not less than three feet below the white light. 
 
 Second. Small steamboats, such as are carried by Small steamboats. 
 sea-going vessels, may carry the white light at a less Position of white 
 height than nine feet above the guiawale, but it shall ^ 
 be carried above the combined lantern mentioned in 
 subdivision one (b). 
 
 Third. Vessels under oars or sails, of less than vessels under oai-s 
 twenty tons, shall have ready at hand a lantern with 
 a green glass on one side and a red glass on the other. Portable green 
 which, on the approach of or to other vessels, shall be *""* "^"^ '''"^'^™- 
 exhibited in suflflcient time to prevent collision, so that 
 the green light shall not be seen on the port side nor 
 the red light on the starboard side. 
 
 The vessels referred to in this article shall not be Limitation of 
 obUged to carry the lights prescribed by article four ^^'^**" 
 (a) and article eleven, last paragraph. 
 
 Aet. 8. Pilot- vessels when engaged on their station puot- vessels on 
 on pilotage duty shall not show the lights required ^^^°^e^ ^'^^■ 
 for other vessels, but shall carry a white light at the 
 masthead, visible all around the horizon, and shall also 
 ■exhibit a flare-up light or flare-up lights at short 
 intervals, which shall never exceed fifteen minutes. 
 
 . On the near approach of or to other vessels they Approaching other 
 shall have their side-lights lighted, ready for use, and 
 shall flash or show them at short intervals, to indicate 
 the direction in which they are heading, but the green 
 light shall not be shown on the port side, nor the red 
 light on the starboard side. 
 
 A pilot- vessel of such a class as to be obliged to go such as go aiong- 
 alongside of a vessel to put a pilot on board may show ^^^^' ®*^- 
 
628 
 
 U. S. Statutes. 
 
 When not on pilot- 
 age duty. 
 
 Pishing-T e s s 6 1 s 
 and flshlng-b oats 
 under way. 
 
 Fishing with drift 
 nets. 
 
 Trawling. 
 
 If steam-vessels. 
 
 If sailing vessels, 
 seven tons and up- 
 wards. 
 
 the white Ught instead of carrying it at the masthead, 
 and may, instead of the colored lights above mentioned, 
 have at hand, ready for use, a lantern with a green 
 glass on the one side and a red glass on the other, to be 
 used as prescribed above. 
 
 PUot- vessels when not engaged on their station on 
 pilotage duty shall carry lights similar to those of 
 other vessels of their tonnage. 
 
 Aet. 9. Fishing- vessels and fishing-boats when under 
 way and when not required by this article to carry 
 or show the lights therein named shall carry or show 
 the lights prescribed for vessels of their tonnage under 
 way. 
 
 (a) Vessels and boa,ts, when fishing with drift nets, 
 shall exhibit two white lights from any part of the 
 vessel where they can best be seen. Such lights shall 
 be placed so that the vertical distance between them 
 shall be not less than six feet and not more than ten 
 feet, and so that the horizontal distance between them, 
 measured in a line with the keel, shall be not less than 
 five feet and not more than ten feet. The lower of 
 these two lights shall be the more forward, and both of 
 them shall be of such a character as to show all around 
 the horizon, and to be visible at a distance of not less 
 than three miles. 
 
 (b) Vessels, when engaged in trawling, by which is 
 meant the dragging of an apparatus along the bottom 
 of the sea — 
 
 First. If steam-vessels, shall carry in the same 
 position as the white light mentioned in article two (a) 
 a tri-colored lantern so constructed and fixed as to show 
 a white light from right ahead to two points on each 
 bow, and a green light and a red light over an arc of 
 the horizon from two points on either bow to two points 
 abaft the beam on the starboard and port sides, re- 
 spectively ; and, not less than six nor more than twelve 
 feet below the tri-colored lantern, a white light in 
 a lantern so constructed as to show a clear, uniform, 
 and unbroken light all around the horizon. 
 
 Second. If sailing vessels, of seven tons gross ton- 
 nage and upwards, shall carry a white light in a lantern, 
 so constructed as to show a clear, uniform, and un- 
 
Chaptek 802. — Collisions at Sea. 629 
 
 broken light all around the horizon, and shall also be 
 provided with a sufficient supply of red pyrotechnic 
 lights, which shall each burn for at least thirty seconds, 
 and shall be shown on the approach of or to other 
 vessels in sufficient time to prevent collision. 
 
 In the Mediterranean Sea the vessels referred to in in Mediterranean 
 subdivision (b) two may use a flare-up light in lieu of ^^" 
 a pyrotechnic light. 
 
 All lights mentioned in subdivision (b) one and two VisiwutyofUghts. 
 shall be visible at a distance of at least two miles. 
 
 Third. If sailing vessels of less than seven tons gross If sailing vessels, 
 tonnage, shall not be obliged to carry the white light less than seven tons. 
 mentioned in subdivision (b) two of this article, but if 
 they do not carry such light they shall have at hand, 
 ready for use, a lantern showmg a bright white light, 
 which shall, on the approach of or to other vessels, be 
 exhibited where it can best be seen, in sufficient time 
 to prevent collision ; and they shall also show a red 
 pyrotechnic light, as prescribed in subdivision (b) two, 
 or in lieu thereof a flare-up light. 
 
 (c) Vessels and boats when line-flshing with their vessels and boats, 
 lines out and attached to their lines, and when not at liJie-flsiiing, etc. 
 anchor or stationary, shall carry the same lights as 
 
 vessels fishing with drift-nets. 
 
 (d) Fishing- vessels and fishing-boats may at any time Fi shing vessels 
 use a flare-up light in addition to the lights which they ^^"iUomi flare-up 
 are by this article required to carry and show. All Ughts. 
 flare-up lights exhibited by a vessel when trawling or 
 
 flshmg -with any kind of drag-net shall be shown at 
 the after part of the vessel, excepting that if the vessel 
 is hanging by the stern to her fishing gear, they shall 
 be exhibited from the bow. 
 
 (e) Every fishing- vessel and evely boat when at At anchor. 
 anchor shall exhibit a white light visible all around 
 
 the horizon at a distance of at least one mile. 
 
 (f) If a vessel or boat when fishing becomes station- when fishing, gets 
 ary in consequence of her gear gettmg fast to a rock fast to rock. etc. 
 or other obstruction, she shall show the light and make 
 
 the fog-signal prescribed for a vessel at anchor respect- 
 ively. (See article fifteen (d) (e) and last paragraph.) 
 
 (g) In fog, mist, falling snow, or heavy rain-storms ,,^,^^'i^t^ 
 drift-net vessels attached to their nets, and vessels rain. 
 
630 U. S. Statutes. 
 
 when trawling, dredging, or fishing with any kind of 
 drag-nets, and vessels Une-fishing with their lines out, 
 shall, if of twenty tons gross tonnage or upwards, 
 respectively, at intervals of not more than one minute, 
 make a blast ; if steam- vessels with the whistle or 
 siren, and if sailing-vessels with the fog-horn, each 
 blast to be followed by ringing the bell. 
 
 Day BignaL (h) Sailing vessels or boats fishing with nets or lines or 
 
 trawls, when underway, shall in day-time indicate their 
 occupation to an approaching vessel by displaying a 
 basket or other efficient signal, where it can best be seen. 
 
 Limitation. The vessels referred to in this article shall not be 
 
 obUged to carry the lights prescribed by article four (a) 
 and article eleven, last paragraph. 
 
 A vessel being Aet. 10. A vessel which is being overtaken by 
 othen''*'^ ^"' another shall show from her stern to such last-men- 
 tioned vessel a white light or a flare-up light. 
 
 Character and The white light required to be showii by this article 
 position of light. ^^y ^^ fixed and carried in a lantern, but in such case 
 the lantern shall be so constructed, fitted, and screened 
 that it shall throw an unbroken light over an arc of the 
 horizon of twelve points of the compass, namely, for 
 six points from right aft on each side of the vessel, so 
 as to be visible at a distance of at least one mile. Such 
 light shall be carried as nearly as practicable on the 
 same level as the side-lights. 
 
 Vessels at anchor. Aet. 11. A vesscl under one hundred and fifty feet 
 len^h."^ in length, when at anchor, shall carry forward, where 
 
 it can best be seen, but at a height not exceeding 
 twenty feet above the hull, a white light in a lantern 
 so constructed as to show a clear, uniform, and unbroken 
 light visible all around the horizon at a distance of 
 at least one mile. 
 
 150 feet or more A vessel of one hundred and fifty feet or upwards in 
 In length. length, when at anchor, shall carry in the forward part 
 
 of the vessel, at a height of not less than twenty and 
 not exceeding forty feet above the hull, one such light, 
 and at or near the stern of the vessel, and at such a 
 height that it shall be not less than fifteen feet lower 
 than the forward light, another such light. 
 
 Length governed The length of a vessel shall be deemed to be the 
 by registry. length appearing in her certificate of registry. 
 
Chapter 802. — Collisions at Sea. 631 
 
 A vessel aground in or near a fair- way shall carry Vessel aground iu 
 the above light or lights and the two red lights pre- ^ ^^^^ '^^^' 
 scribed by article four (a). 
 
 Akt. 12. Every vessel may, if necessary in order to Additional lights 
 
 attract attention, in addition to the lights which she is neoess^f ^ ^" 
 
 by these rules required to carry, show a flare-up light 
 
 or use any detonating signal that cannot be mistaken 
 
 for a distress signal. 
 
 Aet. 13. Nothing in these rules shall interfere with ^'''P^ °' ^^^ ^^^ 
 "= convoys. 
 
 the operation of any special rules made by the Govern- , Certain author- 
 ment of any nation with respect to additional station ^.^' of any nSn', 
 and signal-lights for two or more ships of war or for "°t]?^''fjj"*^'^^P^ 
 vessels sailing under convoy, or with the exhibition 
 of recognition signals adopted by ship-owners, which 
 have been authorized by their respective Governments 
 and duly registered and published. 
 
 Art. 14. A steam- vessel proceeding under sail only, steam-vessel un- 
 but having her funnel up, shall carry in day-time, for- ^Day signal.^ "' 
 ward, where it can best be seen, one black ball or shape 
 two feet in diameter. 
 
 SOUND SIGNALS FOE FOG, AND SO FOETH. Sound signals tor 
 
 fog, etc. 
 
 Art. 15. All signals prescribed by this article for 
 
 vessels under way shall be given : 
 
 1. By "steam-vessels" on the whistle or siren. "Steam-vessels." 
 
 2 Bv " sailing: vessels and vessels towed" on the "SaiUng vessels 
 ■"• -"J " s> and vessels towed." 
 
 fog-horn. 
 
 The words "prolonged blast" used in this article Meaning of "pro- 
 
 „ „ „ , . J 1 J longed blast. 
 
 shall mean a blast of from four to six seconds' dura- 
 tion. 
 
 A steam-vessel shall be provided with an efficient „f "g'to loe^pro^dl 
 whistle or siren, sounded by steam or by some substi- ed on steam-vessels. 
 tute for steam, so placed that the sound may not be in- 
 tercepted by any obstruction, and with an efficient fog- 
 horn, to be sounded by mechanical means, and also 
 with an efficient bell. [In all cases where the rules ^^^^.^f ™^S 
 require a bell to be used a drum may be substituted on vessels. 
 board Turkish vessels, or a gong where such articles 
 are used on board small sea-going vessels.] A sailing ^o^^^^LdTer' °' 
 vessel of twenty tons gross tonnage or upward shall 
 be provided with a similar fog-horn and bell. 
 
632 U. S. Statutes. 
 
 Dayandnigiitfog, In fog, mist, falling snow, or heavy rainstorms, 
 etc., signals. -whether by day or night, the signals described in this 
 
 article shall be used as follows, viz. : 
 Steam-vessel hav- (^) ^ steam-vesscl having way upon her shall sound, 
 lug way upon her. at intervals of not more than two minutes, a prolonged 
 blast, 
 steam-vessel (b) A steam- vessel under way, but stopped, and hav- 
 stopped, ete.^' ""^^ ^^g no way upon her, shall sound, at mtervals of not 
 more than two minutes, two prolonged blasts, with an 
 interval of about one second between them. 
 Sailing vessel un- /q\ \ sailiuff vessel under way shall sound, at inter- 
 
 der way. ^ ' '^ " , 
 
 vals of not more than one minute, when on the star- 
 board tack one blast, when on the port tack two blasts 
 in succession, and when with the wind abaft the beam 
 three blasts in succession. 
 
 Vessel at anchor. (d) ^ vessel when at anchor shall, at intervals of not 
 more than one minute, ring the bell rapidly for about 
 five seconds. 
 
 Vessel at anchor (e) A vessel at anchor at sea, when not in ordinary 
 anchorage ground, and when in such a position as to 
 be an obstruction to vessels under way, shall sound, if 
 a steam-vessel, at intervals of not more than two min- 
 • utes, two prolonged blasts with her whistle or siren, 
 
 followed by ringing her bell ; or, if a sailing vessel, at 
 intervals of not more than one minute, two blasts with 
 her fog-horn, followed by ringing her bell. 
 
 Vessel when tow- (f) A vessel when towing shall, instead of the signals 
 prescribed in subdivisions (a) and (c) of this article, at 
 intervals of not more than two minutes, sound three 
 blasts in succession, namely, one prolonged blast fol- 
 
 Vessei towed. lowed by two short blasts. A vessel towed may give 
 this signal and she shall not give any other. 
 
 Steam-vessel with- (g) A steam- vessel wishing to indicate to another 
 ou way. „ rpj^g ^^y jg Qg jj^y vessel, you may feel your way past 
 
 Three blasts. . me," may sound three blasts in succession, namely, 
 short, long, short, with intervals of about one second 
 between them. 
 
 Telegraph-cable (1^) ^^ Vessel employed in laying or picking up a tele- 
 vessels, graph cable shall, on hearing the fog-signal of an 
 approaching vessel, sound in answer three prolonged 
 
 „ , , , , blasts in succession. 
 
 vfissfll nn&nlA to 
 
 get out of the way. (i) A vessel under way, which is unable to get out of 
 
Chapter 802. — Collisions at Sea. 633 
 
 the way of an approaching vessel through being not 
 under command, or unable to maneuver as required by 
 these rules, shall, on hearing the fog-signal of an ap- ^ 
 
 preaching vessel, sound in answer four short blasts in 
 succession. 
 
 Sailing vessels and boats of less than twenty tons Certain sailing ves- 
 gross tonnage shall not be obliged to give the above- mlkrother^'lound 
 mentioned signals, but, if they do not, they shall make signals, 
 some other efficient sound-signal at intervals of not 
 more than one minute. 
 
 SPEED OF SHIPS TO BE MODERATE IX POG, AND SO FOETII. Speed Ot ships in 
 
 fog, etc. 
 
 Aet. 16. Every vessel shall, in a fog, mist, falling Vessels must mod- 
 snow, or heavy rain-storms, go at a moderate speed, l^*^ ^^^^^ '" *°S' 
 having careful regard to the existing circumstances 
 and conditions. 
 
 A steam- vessel hearing, apparently forward of her steam-vessels un- 
 beam, the fog-signal of a vessel the position of which tto^Tt^^u^SS; 
 is not ascertained, shall, so far as the circumstances of etc. 
 the case admit, stop her engines, and then navigate 
 with caution until danger of collision is over. 
 
 Steeking and Sailing Rules. Steering and sail- 
 
 ing rules. 
 
 PEELIMINAEY EISK OF COLLISION. 
 
 Risk of collision can, when circumstances permit, be Aseert^inment of 
 ,.-,■. J! ■,■• i 1 • J.1 u • risk of collision, 
 
 ascertained by carefully watching the compass bearmg 
 
 of an approaching vessel. If the bearing does not ap- 
 preciably change, such risk should be deemed to exist. 
 
 Aet. 17. When two sailing vessels are approaching Euies of avoidance 
 one another, so as to involve risk of collision, one of ° ^o' sailing ves- 
 them shall keep out of the way of the other, as follows, ^^^^^^Ptg^"*"^^ 
 namely : 
 
 (a) A vessel which is running free shall keep out of 
 the way of a vessel which is close-hauled. 
 
 (b) A vessel which is close-hauled on the port tack 
 shall keep out of the way of a vessel which is close- 
 hauled on the starboard tack. 
 
 (c) When both are running free, with the wind on 
 different sides, the vessel which has the wind on the 
 port side shall keep out of the way of the other. 
 
634 U. S. Statutes. 
 
 (d) When both are running free, with the wind on 
 the same side, the vessel which is to the windward 
 shall keep out of the way of the vessel which is to lee- 
 ward. 
 
 (e) A vessel which has the wind aft shall keep out of 
 the way of the other vessel. 
 
 Two steam-vessels Art. 18. When two steam-vessels are meeting end 
 meeting, end on. ^^^ ^^ nearly end on, so as to involve risk of colhsion, 
 each shall alter her course to starboard, so that each 
 may pass on the port side of the other. 
 Applicable eases. This article only applies to cases where vessels are 
 meeting end on, or nearly end on, in such a manner as 
 Non-appii cable to involve risk of collision, and does not apply to two 
 "^®^^' vessels which must, if both keep on their respective 
 
 courses, pass clear of each other. 
 Cases where ap- The only cases to which it does apply are when each 
 by^^ght."^'^''^^'"^ of the two vessels is end on, or nearly end on, to the 
 other ; in other words, to cases in which, by day, each 
 vessel sees the masts of the other in a line, or nearly 
 in a line, with her own ; and by night, to cases in 
 which each vessel is in such position as to see both the 
 side-lights of the other. 
 Where inappii- It does not apply by day to cases in which a vessel 
 cd, 6 ay an mg . ^^^^ another ahead crossing her own course ; or by 
 night, to cases where the red light of one vessel is op- 
 posed to the red light of the other, or where the green 
 light of one vessel is opposed to the green light of the 
 other, or where a red light without a green light, or 
 a green light without a red light, is seen ahead, or 
 where both green and red lights are seen anywhere 
 but ahead. 
 Two steam- vessels Art. 19. When two steam-vessels are crossing, stj 
 crossing. j^g ^q involve risk of collision, the vessel which has the 
 
 other on her own starboard side shall keep out of tlie 
 way of the other. 
 steam and sailing Art. 20. When a steam-vessel and a sailing vessel 
 vessels meeting. ^^^ proceeding in such directions as to involve risk of 
 collision, the steam-vessel shall keep out of the way of 
 the sailing vessel. 
 What vessel shaU Art. 21 . Where by any of these rules one of two 
 keep her course, ^ggggig jg ^ ^^ggp q^^ of the way, the other shall keep 
 
 her course and speed. 
 
Chapter 802. — Collisions at Sea. 635 
 
 Art. 22. Every vessel which is directed by these Crossing ahead. 
 rules to keep out of the way of another vessel shall, if 
 the circumstances of the case admit, avoid crossing 
 ahead of the other. 
 
 AuT. 23. Every steam-vessel which is directed by Certain steam- 
 these rules to keep out of the way of another vessel Ipeed%te? ''^^^'^ 
 shall, on approaching her, if necessary, slacken her 
 speed or stop or reverse. 
 
 Art. 24. Notwithstanding anything contained in The overtaking 
 these rules, every vessel, overtaking any other, shall of tiTe way, eS! °" 
 keep out of the way of the overtaken vessel. 
 
 Every vessel coming up with another vessel from Definition of 
 any direction more than two points abaft her beam, sei," etc. 
 that is, in such a position, with reference to the vessel 
 which she is overtaking, that at night she would be At night. 
 unable to see either of that vessel's side-lights, shall be 
 deemed to be an overtaking vessel ; and no subsequent 
 alteration of the bearing between the two vessels shall 
 make the overtaking vessel a crossing vessel within 
 the meaning of these rules, or relieve her of the duty 
 of keeping clear of the overtaken vessel until she is 
 finally past and clear. 
 
 As by day the overtaking vessel cannot always know By day. 
 with certainty whether she is forward of or abaft 
 this direction from the other vessel, she should, if in 
 doubt, assume that she is an overtaking vessel and 
 keep out of the way. 
 
 Akt. 25. In narrow channels every steam-vessel shall, steam-vesseis in 
 when it is safe and practicable, keep to that side of the ""^""^ °'^'^'^«'«- 
 fair-way or mid-channel which lies on the starboard 
 oiyip o"f siipIt vgssgI 
 
 Aet. 26. SaiUng vessels under way shall keep out „ samn^^^vesseJs 
 of the way of sailing vessels or boats fishing with nets, avoid flshing-boats, 
 or lines, or trawls. This rule shall not give to any ''*''• 
 vessel or boat engaged in fishing the right of obstruct- Fishing-boats not 
 ing a fair- way used by vessels other than fishing ves- ^^^yg *" 
 
 sels or boats. 
 
 Aet. 27. In obeying and construing these rules due obedience to and 
 regard shall be had to all dangers of navigation and ^"i^^^*'^^''*'"'' °^ 
 collision, and to any special circumstances which may 
 render a departure from the above rules necessary in 
 order to avoid immediate danger. 
 
636 U. S. Statutes. 
 
 Sound-signals for SOUND- SIGKALS FOE VESSELS IN' SIGHT OF ONE ANOTHER. 
 vessels in sight. 
 
 Meaning ot" short Aet. 28. The words "short blast" used m this ar- 
 ^^^^■" tide shall mean a blast of about one second's duration. 
 
 steam-vessel un- When vessels are in sight of one another, a steam- 
 hlfr^'oo'u'rse'^by '^^ssel under way, in taking any course authorized or 
 whistle, etc. required by these rules, shall indicate that course by 
 
 the following signals on her whistle or siren, namely : 
 
 Meaning of one One short blast to mean, " I am directing my course 
 
 short blast. , . , n „ 
 
 to starboard. 
 Of two short '^^° short blasts to mean, "I am directing my 
 blasts. course to port." 
 
 Of three short Three short blasts to mean, "My engines are going 
 ^ blasts. ^^ j^]^ gpgg^ astern." 
 
 No vessel, under NO vessel, L'NDEii any ciecumstances, to neglect 
 any circumstances, 
 
 to^negleet precau- PEcirEE peecautions. 
 
 tions. 
 
 Aet. 29. Nothing in these rules shall exonerate any 
 vessel, or the owner or master or crew thereof, from 
 the consequences of any neglect to carry lights or sig- 
 nals, or of any neglect to keep a proper lookout, or of 
 the neglect of any precaution which may be required 
 by the ordinary practice of seamen, or by the special 
 circumstances of the case. 
 
 Reservation of eeseevation of eules foe haebors and inland navi- 
 rules for harbors 
 and inland waters. Gation. 
 
 Art. .30. Nothing in these rules shall interfere with 
 the operation of a special rule, duly made by local au- 
 thority, relative to the navigation of any harbor, river, 
 or inland waters. 
 
 Distress signals. DISTRESS SIGNALS. 
 
 Aet. 31. When a vessel is in distress and requires 
 assistance from other vessels or from the shore, the 
 following shall be the signals to be used or displayed 
 by her, either together or separately, namely : 
 In day-time. In the day time — 
 
 First. A gun fired at intervals of about a minute ; 
 
Chapter 802. — Collisions at Sea. 637 
 
 Second. The International Code sigtial of distress 
 indicated by N C ; 
 
 Third. The distance signal, consisting of a square 
 flag, having either above or below it a ball or anything 
 resembling a ball ; 
 
 Fourth. Rockets or shells as prescribed below for 
 use at night ; 
 
 Fifth. A continuous sounding with any fog-signal 
 apparatus. 
 
 At night — At night. 
 
 One. A gun fired at intervals of about a minute ; 
 
 Two. Flames on the vessel (as from a burning tar- 
 barrel, oil-barrel, and so forth) ; 
 
 Three. Rockets or shells, bursting in the air with a 
 loud report and throwing stars of any color or de- 
 scription, fired one at a time at short intervals ; 
 
 Four. A continuous sounding with any fog-signal 
 apparatus. 
 
 Sec. 2. That aU laws or parts of laws inconsistent Repeal of oonfllofc- 
 with the foregoing regulations for preventing collisions *''B.'^g.%ees. 4233, 
 at sea, for the navigation of all public and private ves- PP- ^.^^^18. 
 
 , , . , 1 • Vol. 23, p. 438. 
 
 sels of the United States upon the high seas, and m 
 all waters connected therewith navigable by sea-going 
 vessels, are hereby repealed. 
 
 Sec. 3. That this act shall take effect at a time to Operation, 
 be fixed by the President by proclamation issued for 
 that purpose. 
 
 Approved, August 19, 1890. 
 
rROM REVISED STATUTES OF THE UNITED STATES. 
 
 CHAPTER FIVE. 
 
 NAVIGATION. 
 
 Sec. 
 
 4234. Forfeiture of sailing vessels 
 
 for omission of lights. 
 
 4235. State regulations of pilots. 
 
 4236. Pilots on boundaries between 
 
 States. 
 
 4237. No discrimination in rates of 
 
 pilotage. 
 
 4238. Vessels stranded on foreign 
 
 coasts. 
 
 4239. Property wrecked on coast of 
 
 Florida. 
 
 4240. Forfeitures for taking such 
 
 property to foreign port. 
 
 4241. License to wreckers on Flori- 
 
 da coast. 
 
 4242. Life-saving stations on coasts 
 
 of Long Island, etc. 
 
 Sec. 
 
 4243. Superintendents and keep- 
 
 ers. 
 
 4244. Crews of surfmen. 
 
 4245. Stations at light-houses. 
 
 4246. Care of boats. 
 
 4247. Keepers, etc., at stations on 
 
 coasts of Cape Cod and 
 Rhode Island. 
 
 4248. Supervision of stations on 
 
 coast of Rhode Island. 
 
 4249. Stations on coasts of Maine, 
 
 New Hampshire, Massa- 
 chusetts, Virginia, etc. 
 
 4250. Removal of captain by ot^ti- 
 
 ers of vessels. 
 
 4251. Canal-boats not to be hbeled 
 
 for wages. 
 
 Forfeiture of sail- Sec. 4234. Collectors, or other chief ofBcers of the 
 Sfn™f iShts"^"™'^' customs, shall require all sail-vessels to be furnished 
 ~, with proper signal-lights, and every such vessel shall, 
 
 Bion of lights. 
 
 28 Feb., 1871, 
 
 459' ^' ^'*' ^' ^^' ^' '^^ *^^ approach of any steam-vessel during the night- 
 time, show a lighted torch upon that point or quarter 
 to which such steam-vessel shall be approaching. Every 
 such vessel that shall be navigated without complying 
 with the provisions of this and the preceding section, 
 shall be liable to a penalty of two hundred dollars, one- 
 half to go to the informer ; for which sum the vessel so 
 navigated shall be liable, and may be seized and pro- 
 ceeded against by way of libel, in any district court of 
 the United States having jurisdiction of the offense. 
 
 Sec. 4235. Until further provision is made by Con- 
 gress, all pilots in the bays, inlets, rivers, harbors, and 
 ports of the United States shall continue to be regulated 
 
 Gibbons vs. Og- jn conformity with the existing laws of the States re- 
 den, 9 Wh., 207; Ho- X- n ■; • 1 -1 i. 1 -i-l V, 
 
 bart vs. Drogan, 10 spectively wherem such pilots may be, or with such 
 Mses ^i^io^'^'m'- ^^"^^ ^^ ^^^^ States may respectively enact for the pur- 
 
 Cooley vs. Board of pose. 
 
 Wardens, 12 How, 
 
 299; £x jparte McNiel, 3 Wall., 
 
 State regulation 
 of pilots. 
 
 7 August, 1789, c. 
 9, S. 4, V. 1, p. 54. 
 
 236. 
 
Title XL VIII. — Commerce and Navigation. — Ch. 5. 639 
 
 Sec. 4236. The master of any vessel coming into or pilots on bound- 
 going out of any port situate upon waters which are g^|,gg® between 
 the boundary between two States, may employ any 2 March, 1837, 0. 
 pilot duly licensed or authorized by the laws of either ^^' ^- ^- P- ^^^• 
 of the States bounded on sach waters, to pilot the 
 vessel to or from such port. 
 
 Sec. 4237. No regulations or provisions shall be Nodisorimination 
 adopted by any State which shall make any discrimina- i° '-'^tes of pilotage. 
 tion in the rate of pilotage or half -pilotage between 177, v. lif p. 93. ' 
 vessels sailing between the ports of one State and 
 vessels sailing between the ports of different States, or 
 any discrimination against vessels propelled in whole 
 or in part by steam, or against national vessels of the 
 United States; and all existing regulations or pro- 
 visions making any such discrimination are annulled 
 and abrogated. 
 
 Sec. 4238. Consuls and vice-consuls, in cases where ves- Vessels stranded 
 sels of the United States are stranded on the coasts of their °°, °'^f^.°°tL' 
 
 14 Apnl, 1792, u. 
 
 consulates respectively, shall, as tar as the laws of the 24, s. 3, v. 1, p. 265. 
 
 country will permit, take i^roper measures, as well for 
 
 the purpose of saving the vessels, their cargoes and 
 
 appurtenances, as for storing and securing the effects 
 
 and merchandise saved, and for taking inventories 
 
 thereof ; and the merchandise and effects saved, with 
 
 the inventories thereof so taken, shall, after deducting 
 
 therefrom the expenses, be delivered to the owners. 
 
 No consul or vice-consul shall have authority to take 
 
 possession of any such merchandise, or other property, 
 
 when the master, owner, or consignee thereof is present 
 
 or capable of taking possession of the same. 
 
 Sec. 4239. All property, of any description whatso- property wl-eoked 
 ever, which shall be taken from any wreck, from the onaecoastotFior- 
 sea, or from any of the keys and shoals, within the 3 March, 1825, 0. 
 jurisdiction of the United States, on the coast of lo''' s- 2, v. 4, p. 133. 
 Florida, shall be brought to some port of entry within 
 the jurisdiction of the United States. 
 
 Sec 4240. Every vessel which shall be engaged or Forfeitures for 
 
 •' , ,. J. taking wrecked 
 
 employed in carrymg or transporting any property property to foreign 
 whatsoever, taken from any wreck, from the sea, or P"'"'^^ ^^^^ .. 
 from any of the keys or shoals, within the jurisdiction ^^^^ ^.Ty'-i, P-i^^'- 
 of the United States, on the coast of Florida, to any 
 foreign port, shall, together with her tackle, apparel. 
 
640 U. S. Revised Statutes. 
 
 and furniture, be forfeited, and all forfeitures incurred 
 by virtue of this section shall accrue, one moiety to the 
 informer and the other to the United States. 
 License to wreck- Sec. 4:^41. No vessel, or master thereof, shall be 
 regularly employed in the business of wrecking on the 
 
 ers on Florida coast. 
 
 20, s. 3, v.'9,p. 131. " coast of Florida without the license of the judge of the 
 
 district court for the district of Florida ; and, before 
 licensing any vessel or master, the judge shall be satis- 
 fied that the vessel is seaworthy, and properly and suf- 
 ficiently fitted and equipped for the business of saving 
 property shipwrecked and in distress ; and that the 
 master thereof is trustworthy, and innocent of any 
 fraud or misconduct in relation to any property ship- 
 wrecked or saved on the coast. 
 Life-saving sta- Sec. 4242. The Secretary of the Treasury may estab- 
 
 Long isrand?ttc. °^ ^i^h such stations on the coasts of Long Island and New 
 14 Dec, 1854, c. Jersey, for affording aid to shipwrecked vessels thereon, 
 
 1, s. 1, V. 10, p. 597. ^^^ jjjg^y ijja,ke such changes in the location of the 
 existing stations, and make such repairs and furnish 
 such apparatus and supplies as may, in his judgment, 
 be best adapted to the preservation of life and prop- 
 erty from such shipwrecked vessels. 
 Superintendents Sec. 4243. The Secretary of the Treasury may 
 
 an eepers. appoint, at each of the stations established under the 
 
 1 s* 2^v°io ^p.^597?' provisions of the preceding section, a keeper, at a 
 20 April, 1871 0. compensation not exceeding two hundred dollars a 
 
 21, s. 27, V. 17, p. 12. ^ ° 
 
 year, and a superintendent, who shall also have the 
 powers and perform the duties of an inspector of the 
 customs for each of the coasts therein mentioned ; and 
 he shall give such keepers and superintendents proper 
 instructions relative to the duties to be required of 
 them. 
 Crews of surfmen. Sec. 4244. The Secretary of the Treasury may also 
 
 20 April, 1871, c. employ crews of experienced surfmen at such stations 
 ' ■ ' ■ 'on the coast of Long Island and New Jersey, and for 
 
 such periods as he may deem necessary and proper, 
 and at such compensation as he may deem reasonable, 
 not to exceed forty dollars a month for each person to 
 be employed, 
 stations at light- Sec. 4245. The Secretary of the Treasury may also 
 °"^®^" establish such stations at such light-houses as, in his 
 
 s. i, V. 10, p. 597. ' judgment, he shall deem best, and the keepers of such 
 
Title XLVIII. — Commerce and Navigation. — Ch. 5. 6-il 
 
 lights shall take charge of such boats and apparatus 
 as may be put m their charge respectively, as a part of 
 their official duties. 
 
 Sec. 4246. No boat shall be purchased and located, care of boats. 
 
 under the provisions of the four preceding sections, at i* Deo., 1854, o. 
 any point other than on the coasts of Long Island and ' 
 New Jersey, unless the same be placed in the immedi- 
 ate care of an officer of the Government, or unless 
 bond shall be given by proper individuals, living in the 
 neighborhood, conditioned for the care and preservation 
 of the same, and its application to the uses intended. 
 
 Sec. 4247. The Secretary of the Treasury may ap- Keepers, etc., at 
 point a keeper for each of the ten life-saving stations Sap*i°coXnd Ehorte 
 
 on the coasts of Cape Cod, Massachusetts, and Block island 
 
 Island, Ehode Island, vi^hose compensation shall be at ^Tjan^TsraTcTsi, 
 
 the rate of tvi^o hundred dollars per annum, and may 
 
 employ crews of experienced surfmen at such stations 
 
 and for such periods as he may deem necessary and 
 
 proper, and at such compensation as he may deem 
 
 reasonable, not to exceed forty dollars per month for 
 
 each person to be employed. [See § 223.] 
 
 Sec. 4248. The life-saving stations at Narragansett supervision of 
 Pier, and Block Island, Rhode Island, shall be under f^'go^°^s°an°d°'^* °' 
 the supervision of the superintendent of life-saving ibid. 
 stations for the coast of Long Island. 
 
 Sec. 4249. The Secretary of the Treasury shall pro- stations on coasts 
 vide for the establishment of ten life-saving stations on Ma^.rvrr^nia, etr. 
 the coasts of Maine, New Hampshire, and Massachusetts, 3 March, 1873, c. 
 Virginia, and North Carolina, at such points as he may 307,s. i,y.i7,p.6i9. 
 deem necessary, for the saving of life and property on 
 said coasts: Provided, That all life-saving stations 
 hereafter erected shall be erected under the supervision 
 of two captams of the revenue service, to be designated 
 by the Secretary of the Treasury, and to be under his 
 direction. 
 
 Sec. 4250. Any person or body-corporate having Removal of cap- 
 more than one-half ownership of any vessel shall have ^eJ^seK "'"""'' °^ 
 the same power to remove a master, who is also part 9 April, i872, c. 90, 
 owner of such vessel, as such majority owners have to v. 17, p. 5i. 
 remove a master not an owner. This section shall not 
 apply where there is a vahd written agreement subsist- 
 ing, by virtue of which such master would be entitled 
 
 41 
 
642 
 
 U. S. Revised Statutes. 
 
 Canal-boats not to 
 be libeled for wu^es. 
 
 20 July, 1846, o. 60, 
 s. 1, V. 9, p. 38. 
 
 to possession, nor in any case where a master has pos- 
 session as part owner, obtained before the nineteenth 
 clay of April, eighteen hundred and seventy-two. 
 
 Sec. 4251. No canal-boat, without masts or steam- 
 power, which is required to be registered, licensed, or 
 enrolled and licensed, shall be subject to be libeled in 
 any of the United States courts for the wages of any 
 person who may be employed on board thereof, or in 
 navigating the same. 
 
 CHAPTER SIX. 
 
 TRANSPORTATION OF PASSENGERS 
 MERCHANDISE. 
 
 AND 
 
 Sec. 
 4252. 
 
 4253. 
 
 4254. 
 4255. 
 4256. 
 4257. 
 4258. 
 4259. 
 
 4260. 
 4261. 
 
 4262. 
 4263. 
 4264. 
 
 4265. 
 
 4266. 
 4267. 
 
 4268. 
 
 4269. 
 4270. 
 4271. 
 
 4272. 
 
 Space tor passengers in ves- 
 sels arriving from foreign 
 ports. 
 
 Penalty tor taking too many 
 passengers. 
 
 Lookers and hospitals. 
 
 Berths. 
 
 Houses on deck. 
 
 Ventilators. 
 
 Cooking-range. 
 
 Penalty for neglect to com- 
 ply with requirements. 
 
 Provisions. 
 
 Penalty for failure to provide 
 provisions and water. 
 
 Distribution of provisions. 
 
 Discipline and health. 
 
 Inspection of passenger-ves- 
 sels. 
 
 Vessels bound to or from the 
 Pacific Ocean. 
 
 Lists of passengers. 
 
 Copies to be returned to 
 Secretary of State. 
 
 Payment in case of death of 
 passenger. 
 
 Punalty for refusal to pay. 
 
 Recovery of penalties. 
 
 Vessels belonging to coloni- 
 zation societies. 
 
 Examination of emigrant ves- 
 sels by collector. 
 
 Sec. 
 
 4273. Informers. 
 
 4274. Vessels carrying passengers 
 
 without the United States. 
 
 4275. Penalty upon visiting part 
 
 of vessel assigned to emi- 
 grants. 
 
 4276. Penalty for permitting offi- 
 
 cers or seamen to visit 
 such part of vessel. 
 
 4277. Notice to be posted in emi- 
 
 grant-vessels. 
 427S. Transportation of nitro-gly- 
 cerine. 
 
 4279. Packing and marking nitro- 
 
 glycerine. 
 
 4280. Regulation by States of traf- 
 
 fic in nitro-glycerine. 
 
 4281. LiabiUty of masters, etc., as 
 
 carriers. 
 
 4282. Loss by fire. 
 
 4283. LiabiUty of owner not to ex- 
 
 ceed his interest. 
 
 4284. General average of losses. 
 
 4285. Transfer of interest of owner 
 
 to trustee. 
 
 4286. When charterer is deemed 
 
 owner. 
 
 4287. Remedies reserved. 
 
 4288. Shipping inflammable mate- 
 
 rial. 
 
 4289. Exception to limitation of 
 
 liability. 
 
 Space for passeu- hEc. 4252. No master of any vessel owned m whole 
 
 gers in vessels arriv- . , , ... r ,-, -r-r ■, -, r,, , 
 
 ing from foreign or m part by a Citizen of the United States, or by a 
 
 ?££!!: citizen of any foreign country, shall take on board such 
 
 213, s^'^i, 'v.^ in,' p.' vessel, at any foreign port or place other than foreign 
 '^■4 Jul 1864 c 249 <^""tiguous territory of the United States, passengers 
 s. 1, v. 13, p. 390. ' contrary to the provisions of this section, with intent 
 
Title XL VIII. — Commerce and Navigation. — Ch. 6. 64iJ 
 
 to bring such passengers to the United States and leave 
 such port or place and bring such passengers, or any 
 number thereof, within the jurisdiction of the United 
 States. The number of such passengers shall not be 
 greater than in the proportion of one to every two tons 
 of such vessel, not including children under the age of 
 one year in the computation, and computing two chil- 
 dren over one and under eight years of age as one 
 passenger. The spaces appropriated for the use of such 
 passengers, and which shall not be occupied by stores 
 or other goods, not the personal baggage of such pas- 
 sengers, shall be in the following proportions : On the 
 main and poop decks or platforms, and in the deck- 
 houses, if there be anj^, one passenger for each sixteen 
 •clear superficial feet of deck, if the height or distance 
 between the decks or platforms shall not be less than 
 six feet ; and on the lower deck, not being an orlop 
 deck, if any, one passenger for eighteen such clear 
 superficial feet, if the height or distance between the 
 decks or platforms shall not be less than six feet, but 
 so as that no passenger shall be carried on any other 
 deck or platform, nor upon any deck where the height 
 or distance between decks is less than six feet. But 
 on board two-deck ships, where the height between the 
 decks is seven and one-half feet or more, fourteen clear 
 superficial feet of deck shall be the proportion required 
 for each passenger. The term " contiguous territory," 
 as used in this section, shall not be held to extend to 
 any port or place connecting with any interoceanic 
 route through Mexico. 
 
 Sec. 4253. Whenever the master of any such vessel penalty for taking 
 takes on board of the same, at any foreign port or place, too^^any passen- 
 other than such contiguous territory, any greater num- 3 March, 18M, c. 
 ber of passengers than in the proportion to the space 716. ' ^' ' ^' ' 
 or to the tonnage prescribed in the preceduig section, u s. ds. Brig 
 with intent to'bri.g such passengers to the United Neurea. 19 How., 9. 
 States, and leaves such port or place and brings such 
 passengers within the jurisdiction of the Umted States, 
 or takes on board his vessel, at any port or place within 
 the jurisdiction of the United States, any greater num- 
 ber of passengers than in the proportion to the space 
 or to the tonnage prescribed by the preceding section. 
 
644 U. S. llEvisED Statutes. 
 
 with intent to carry the same to any foreign port or 
 place other than such foreign contiguous territory, he 
 shall be deemed guilty of a misdemeanor, and shall, 
 for each passenger taken on board beyond such limit 
 or space, be fined fifty dollars, and may also be impris- 
 oned for not exceeding six months. 
 Lookers and hos- Sec. 4254. Should it be necessary for the safety or 
 51- — : convenience of such vessel that any portion of her 
 
 3 March, 1855, c. ,, ^- ■, u lA v. i A >. a 
 
 213, s. 1, V. 10, p. cargo, or any other article, should be placed on or stored 
 ^^®" in any of the decks, cabins, or other places appropriated 
 
 to the use of passengers, the same may be placed in 
 lockers or inclosures prepared for the purpose, on an 
 exterior surface impervious to the waves, capable of 
 being cleansed in like manner as the decks or platforms 
 of the vessel. But in no case shall the places thuiv 
 provided be deemed to be a part of the space allo-«'- 
 able for the use of passengers, but the same shall 
 be deducted therefrom ; and in all cases where such 
 lockers or enclosed spaces are prepared or used, the 
 upper surface thereof shall be deemed the deck or plat- 
 form from which measurement shall be made for all 
 the purposes of this chapter. One hospital, in the 
 spaces appropriated to passengers, and separate there- 
 from by an appropriate partition, and furnished as its 
 purposes require, may be prepared, and, when used, 
 may be included in the space allowable for passengers ; 
 but the same shall not occupy more than one hundred 
 superficial feet of deck or platform. 
 Berths. Sec. 425.5. Xo such vessel shall have more than two 
 
 3 March, iso.j, c. tiers of berths. The interval between the lowest part 
 -T p'i'" 'al — ' , ■ ' thereof and the deck or platform beneath shall not be 
 
 1116 bteainsnip ^ 
 
 Manhattan, 2 Ben., less than nine inches : and the berths shall bo well 
 
 88 
 
 constructed, parallel with the sides of the vessel, and 
 separated from each other by partitions, as berths 
 ordinarily are separated, and shall be at least six feet 
 in length, and at least two feet m width, and each such 
 berth shall be occupied by no more than one passenger ; 
 but double berths of twice the above width may be 
 constructed, each berth to be occupied by no more 
 and by no other than two women, or by one woman 
 and two children under the age of eight years, or by 
 husband and wife, or by a man and two of his owa 
 
Title XLVIII. — Commekcb and Navigation. — Ch. 6. 645 
 
 children under the age of eight years, or by two men, 
 members of the same family. For any violation of 
 this section, the master of the vessel, and the owners 
 thereof, shall severally be liable to a penalty of five 
 dollars for each passenger on board of such vessel on 
 such voyage, to be recovered by the United States in 
 any port where such vessel may arrive or depart. 
 
 Sec. 4256. All vessels, whether of the United States Houses on deck. 
 
 or any foreign country, having sufficient space, accord- 3 March, 1855, o. 
 ing to law, for fifty or more passengers, other than 716'. ^" ' ^" ' ' 
 cabin passengers, shall, when employed in transporting 
 such passengers between the United States and Europe, 
 have, on the upper deck, for the use of such passengers, 
 a house over the passenger- way leading to the apart- 
 ments allotted to such passengers below deck, firmly 
 secured to the deck or combings of the hatch, with 
 two doors, the sills of which shall be at least one foot 
 above the deck, so constructed that one door or window 
 in such house may at all times be left open for ventila- 
 tion. All vessels so employed, and having the capacity 
 to carry one hundred and fifty such passengers or 
 more, shall have two such houses ; and the stairs or 
 ladder leading down to such apartments shall be fur- 
 nished with a hand-rail of wood or strong rope ; but 
 l)Ooby-hatches may be substituted for such houses. 
 
 Sec. 4257. Every such vessel so employed in trans- Ventilators. 
 porting passengers between the United States ^"^^ ^ilf^l^X^^io,' p. 
 Europe, and having space according to law for more m. 
 than one hundred such passengers, shall have at least 
 two ventilators to purify each apartment occupied by 
 such passengers ; one of which shall be inserted in the 
 after part, and the other in the forward part of the 
 apartment, and one of them shall have an exhaustmg- 
 cap to carry off the foul air, and the other a receivnig- 
 cap to carry down the fresh air. Such ventUators 
 shall have a capacity proportioned to the size of the 
 apartments to be purified, namely : If the apartments 
 will lawfully authorize the reception of two hundred 
 such passengers, the capacity of each of such ventilators 
 shall be equal to a tube of twelve inches diameter m 
 the clear, and in proportion for larger or sma ler apart- 
 ments. All such ventilators shall rise at least four 
 
646 U. S. Revised Statutes. 
 
 feet six inches above the upper deck of any such vessel, 
 and be of the most approved form and construction. 
 If it appears from the report to be made and approved, 
 as provided in section forty-two hundred and seventy- 
 two, that such vessel is equally well ventilated by any 
 other means, such other means of ventilation shall be 
 deemed to be a compliance with the provisions of this 
 section. 
 Cooking-range. Sec. 42.58. Every vessel carrying more than fifty 
 
 3 March, 1855, o. such passengers, and engaged in transporting them 
 
 213, s. 5. between the United States and Europe, shall have for 
 
 their use on deck, housed and conveniently arranged, 
 at least one cambooseor cooking-range, the dimension ;> 
 of which shall be equal to four feet long and one foot 
 six inches wide for every two hundred passengers ; and 
 provision shall be made in the same manner, in this 
 ratio, for a greater or less number of passengers ; but 
 nothing in this section shall take away the right to 
 make such arrangements for cooking between decks, if 
 that shall be deemed desirable. 
 Penalty tor neg- Sec. 4259. The master and owner of any such vessel 
 
 lecting to comply gp employed, which shall not be provided with the 
 
 with reqmrements. i- j > j- 
 
 ■ 3 March 1855 c ' house Or houses over the passageways, or with the 
 213, s. 8, V. 10, p. ventilators, or with the cambooses or cooking-ranges 
 with the houses over them, required by this Title, shall 
 severally be liable to a penalty of two hundred dollars 
 for each and every violation of, or neglect to conform 
 to, each of these requirements, to be recovered by suit 
 ua any circuit or district court of the United States 
 within the jurisdiction of which such vessel may arrive, 
 or from which she may be about to depart, or at any 
 place within the jurisdiction of such courts, wherever 
 the owner or master of such vessel may be found. 
 Provisiuuh. Sec. 4260. All vessels so employed in transporting 
 
 3 March, i«55, c. passengers between the United States and Europe shall 
 717; ^' ' ''' ' ' ^' have on Iroard, for the use of such passengers, at the 
 time of leaving- the last port whence such vessel shall 
 sail, well secured under deck, for each passenger, at 
 least twenty pounds of good navy bread, fifteen pounds 
 of rice, fifteen pounds of oatmeal, ten pounds of wheat- 
 flour, fifteen pounds of pease and beans, twenty pounds 
 of potatoes, one pint of vinegar, sixty gallons of fresh 
 
Title XL VIII. — Commerce and Navigation. — Ch. 6. 647 
 
 water, ten pounds of salt pork, and ten pounds of salt 
 beef, free of bone, all to be of good quality. At places 
 where either rice, oatmeal, wheat-flour, or pease and 
 beans cannot be procured, of good quality and on rea- 
 sonable terms, the quantity of either or any of the other 
 last-named articles may be increased and substituted 
 therefor ; and, in case potatoes cannot be procured on 
 reasonable terms, one pound of either of such articles 
 may be substituted in lieu of five pounds of potatoes. 
 The master of such vessels shall deliver to each passen- 
 ger at least one-tenth part of such provisions weekly, 
 commencing on the day of sailing, and at least three 
 quarts of water daily. 
 
 Sec. 4261. If the passengers on board of any such Penalty for fail- 
 vessel in which the provisions and water shall not have visions and water. 
 been provided as required by the preceding section, 3 March, 1855, o. 
 
 , ,T i J.- -1 i. 1, 4. n J • 213, s. 6, T. 10, p. 
 
 shall, at any time, be put on short allowance durmg 718. 
 any voyage, the master or owner of any such vessel 
 shall pay to each passenger put on short allowance the 
 sum of three dollars for each and every day such pas- 
 senger may have been put on short allowance, to be 
 recovered in the circuit or district court of the United 
 States. 
 Sec. 4262. It shall be the duty of the master of Distribution of 
 
 , . , , . -u provisions. 
 
 every vessel employed m transporting passengers be- 3 March, isss, c. 
 tween the United States and Europe to cause the food 213, s. 6, V. 10,' p. 
 and provisions of all the passengers to be well and prop- ''"• 
 erly cooked, daily, and to be served out and distributed 
 to them at regular and stated hours, by messes, or m 
 such other manner as shall be deemed best and most 
 conducive to Ihe health and comfort of such passen- 
 gers, of which hours and manner of distribution due 
 and sufficient notice shall be given. Every master of 
 any such vessel who willfully fails to furnish and dis- 
 tribute provisions in the quantity and cooked in the 
 manner required by this Title shall be deemed guilty 
 of a misdemeanor, and shall be fined not more than one 
 thousand dollars, and imprisoned for a term not ex- 
 ceeding one year. The enforcement of this penalty, 
 however, shall not afEect the civil responsibility of the 
 master and owners to such passengers as may have 
 suffered from such default. 
 
648 U. S. Revised Statutes. 
 
 Discipline and Sec. 4263. The master of any vessel employed in 
 T March 1855 transporting passengers between the United States and 
 
 213, s. 7, 'v. 10,' p- Europe is authorized to maintain good discipline and 
 such habits of cleanliness among passengers as will 
 tend to the preservation and promotion of health ; and 
 to that end he shall cause such regulations as he may 
 adopt for this purpose to be posted up, before sailing, 
 on board such vessel, in a place accessible to such pas- 
 sengers, and shall keep the same so posted up during 
 the voyage. Such master shall cause the apartments 
 occuiDied by such passengers to be kept at all times in 
 a clean, healthy state ; and the owners of every such 
 vessel so employed are required to construct the decks 
 and all parts of the apartments so that they can be 
 thoroughly cleansed ; and also to provide a safe, con- 
 venient privy or water-closet for the exclusive use of 
 every one hundred such passengers. The master shall 
 also, when the weather is such that the passengers 
 cannot be mustered on deck with their bedding, and at 
 such other times as he may deem necessary, cause the 
 deck occupied by such passengers to be cleansed 
 with chloride of lime, or some other equally effi- 
 cient disinfecting agent. And for each neglect or 
 violation of any of the provisions of this section, 
 the master and owner of any such vessel shall be 
 severally liable to the United States in a penalty of 
 fifty dollars, to be recovered in any circuit or district 
 court within the jurisdiction of which such vessel 
 may arrive, or from which she is about to depart, or 
 at any place where the owner or master may l)e 
 found. • 
 
 Inspection of pas- Sec. 4204. The collector of the customs, at any port 
 
 aenger-vesse . — ^^ v^hich any vessel so employed shall arrive, or from 
 
 3 March, 1855, c. •' ,•,,,■,, 
 
 213, s. 9, V. 10, p. which any such vessel shall be about to depart, shall 
 '^^^ appoint and direct one or more of the inspectors of the 
 
 customs for such port to examine such vessel, and 
 report in writing to him whether the requirements 
 of law have been complied with in respect to such 
 vessel; and if such report shall state such com- 
 pliance, and shall be approved by such collector, it 
 shall be deemed prima-facie evidence thereof. [See § 
 4272.] 
 
Title XLVIIL— Commerce and Navigation.— Ch. 6. 649 
 
 Sec. 4265. Vessels bound from any port in the United vessels bound to 
 States to any port or place in the Pacific Ocean, or on ocS°™ ^^^ ^^"'^^ 
 its tributaries, or from any such port or place to any "3 March, 1855, 0. 
 port in the United States on the Atlantic, or its trib- 2i3, s. ii,'v. loi p. 
 
 719 
 
 utaries, including vessels vrhose passengers, or any 4' juiy, 1864, c. 
 part of them, shall be bound from or to any of those ^0! ^' ^' ^" ^^' ^' 
 ports or places, by way of any overland route through 
 Mexico or Central America, shall be subject to the 
 foregoing provisions regulating the carriage of pas- 
 sengers in merchant-vessels; except so much as 
 relates to food and water ; but the owners and masters 
 of such vessels shall in all cases furnish to each pas- 
 senger the daily supply of water therein mentioned ; 
 and they shall furnish a suflBcient supply of good and 
 wholesome food, properly cooked ; and in case they shall 
 fail so to do, or shall provide unwholesome or unsuit- 
 able food, such masters or owners shall be liable to pay 
 to each passenger the sum of three dollars for each day 
 on which such failure or wrongful act is committed, to 
 be recovered in the circuit or district court of the 
 United States. 
 
 Sec. 4266. The master of any vessel arriving in the Lists of passen- 
 United States, or any of the Territories thereof, froni ?^ 
 
 XT. i. 1, 3 March, 1855, o. 
 
 any foreign place whatever, at the same time that he 213, s. 12, v. 10, p. 
 delivers a manifest of the cargo, and if there be no ''^^• 
 cargo, then at the time of making report or entry of the 
 vessel, pursuant to law, shall also deliver and report 
 to the collector of the district in which such vessel 
 shall arrive a Ust of all the passengers taken on board 
 of the vessel at any foreign port or place ; in which list 
 he shall designate particularly the age, sex, and occu- 
 pation of the passengers respectively, the part of 
 the vessel occupied by each during the voyage, and 
 country to which they severally belong, and that of 
 which it is their intention to become inhabitants ; and 
 shall further set forth whether any and what number 
 have died on the voyage ; such Ust shall be sworn toby 
 the master, in the same manner as directed by law m 
 relation to the manifest of the cargo ; and the refusal 
 or neglect of the master to comply with the provisions 
 of this section, or any part thereof, shall incur the 
 same penalties, disabilities, and forfeitures as are 
 
050 U. S. Revised Statutes. 
 
 provided for a refusal or neglect to report and deliver 
 
 a manifest of the cargo. [See §§ 2774, 2807-281 5. J 
 
 Copies to be re- Sec. 4267. Every collector of the customs to whom 
 
 uf State*" ^"'"■^'^'"^ such lists of passengers shaU be delivered, shall 
 
 ^'3 March, 1855, o. quartcr-yearly return copies thereof to the Secretary 
 
 •213, s. 13. ' ' Qf c.;^a^^g_ 
 
 Paymentincaseof Skc. 42()8. In case there shall have occurred on board 
 death ot passenger. a.ny vessel arriving at any port or place within the 
 iitfs^'^ii,' v.* w, p. United States, or its Territories, any death among the 
 ''i^- passengers, other than cabin passengers, the master, or 
 
 owner, or consignee of such vessel shall, within twenty- 
 four hours after the time within which the report and 
 list of passengers is required to be delivered to the col- 
 lector of the customs, pay to the collector the sum of ten 
 dollars for each and every pasenger above the age of eight 
 years who shall have died on the voyage by natural 
 disease. The collector shall pay the money thus re- 
 ceived, at such times and in such manner as the Secretary 
 of the Treasury, by general rules, shall direct, to any 
 %oard or commission appointed by and acting under the 
 authority of the State within which the port where such 
 vessel arrived is situated, for the care and protection of 
 sick, indigent, or destitute emigrants, to be applied to 
 the objects of their appointment ; and if there be more 
 than one board or commission who shall claim such 
 payment, the Secretary of the Treasury shall determine 
 which is entitled to receive tlie same, and his decision in 
 the premises shall be final and without appeal ; but such 
 payment shall in no case be awarded or made to any 
 board, or commission, or association formed for the pro- 
 tection or advancement of any particular class of emi- 
 grants, or emigrants of any particular nation or creed. 
 Penalty for re- Sec. 4269. Every master, owner, or consignee of any 
 fiisaitopay. vcssel, who refuses or neglects to pay to the collector 
 
 3 March, 1855, c. j. . t -ji - ji j- -, , 
 
 213, 8. 14, V. 10, p. any sum ot money required, within the time prescribed 
 ''2''- by the preceding section, shall be liable to a penalty of 
 
 fifty dollars, in addition to such sum of ten dollars, for 
 each passenger upon whose death the same has breome 
 payable, to be recovered by the United States in any 
 circuit or district court of the United States wheri' such 
 vessel may arrive, or such master, owner, or consignee 
 may reside ; and the money shall be disposed of in the 
 
Title XL VIII. — Commebce akd Navigation.— Ch. 6. 651 
 
 same manner as is directed with respect to the sums 
 required to be paid to the collector of customs. 
 
 Sec. 4270. The amount of the several penalties im- Eeoovery ot pen- 
 posed by the foregoing provisions regulating the car- °'^^'°^" 
 
 riage of passengers in merchant-vessels shall be liens 2l3,^^l5^ ^^^^' "' 
 on the vessel violating those provisions, and such ves- 
 sels shall be libeled therefor in any circuit or district 
 court of the United States where such vessel shall 
 arrive. [See § 629.] 
 
 Sec. 4271. Any vessel which may be employed by Vessels belonging- 
 the American Colonization Society, or the colonization Bocieties."^*^*""" 
 society of any State, to transport, and which shall ac- lua., s. i6. ' 
 tually transport, from any port of the United States to 
 any colony on the west coast of Africa, colored emi- 
 grants, to reside there, shall be subject to the operation 
 of the foregoing provisions regulating the carriage of 
 passengers in merchant vessels. 
 
 Sec. 4272. The collector of the customs shall examine Examination of 
 each emigrant-vessel, on its arrival at his port, and as- eoiifctor. ^^^^'^ ^ ^ 
 certain and report to the Secretary of the Treasury the iwd., s. n. 
 time of sailing, the length of the voyage, the ventila- 
 tion, the number of passengers, their space on board, 
 their food, the native country of the emigrants, the 
 number of deaths, the age and sex of those who died 
 during the voyage ; together with his opinion of the 
 cause of the mortality, if any, on board, and, if none, 
 what precautionary measures, arrangements, or habits 
 are supposed to have had any, and what, agency in- 
 causing the exemption. 
 
 Sec. 4273. Informers shall be entitled to one-half of informers. 
 any penalty or fine collected under the provisions relat- ^ ^^^^^^^-^^^^'^^ 
 ing to the transportation of passengers in vessels to or ^- ' ' ' " 
 from any foreign port or place other than foreign con- 
 tiguous country, upon their information. 
 
 Sec. 4274. The provisions of this Title relating t« ^J--^^,-™ 
 the transportation of passengers between the United the United states. 
 States and any port other than foreign contiguous ter- ^^i9 ^eb.,^ W62^c. 
 ritory, except such as relate to lists or manifests of ' • ' ' 
 passengers, shall apply to all vessels owned, in whole 
 or in part, by citizens of the United States, and regis- 
 tered, enrolled, or licensed within the United States, 
 and to all masters thereof carrying passengers or intend- 
 
6;V2 U. S. Revised Statutes. 
 
 ing to carry passengers from any foreign port without 
 the United States to any other foreign port without 
 the United States, and all the penalties and forfeitures 
 provided for in such provisions shall apply to such 
 vessels and masters. 
 Penalty upon Sec. 4275. Neither the officers, seamen, nor other 
 lefaSfgntd to emi- persons employed on board of any vessel bringing emi- 
 grants^ grant passengers to the United States, or any of them, 
 
 21 March, 1860, c. ghj^u yigit or frequent any part of such vessel assigned 
 8. s. 2, V. 12, p. 3. ^ , , ,, 1- J. 
 
 to emigrant passengers, except by the direction or per- 
 mission of the master of such vessel first made or given 
 for such purpose. Every officer, seaman, or other per- 
 son employed on board of such vessel who shall violate 
 the provisions of this section shall be deemed guilty of 
 a misdemeanor, and, on conviction thereof, shall forfeit 
 to the vessel his wages for the voyage of the vessel 
 during which the offense has been committed. [See 
 §§ 5349-5351.J 
 Penalty Jor per- >'^E<'- 4276. Every master who directs or permits any 
 mitting offlcers or ofQggr or seaman or other person employed on board 
 
 seamen to visit such ^ ir j 
 
 part of vessel. of any vessel to visit or frequent any part of such ves- 
 
 ibid. sel assigned to emigrant passengers, except for the pur- 
 
 pose of doing or performing some necessary act or duty 
 as an officer, seaman, or other person employed on board 
 of the vessel, shall be deemed guilty of a misdemeanor, 
 and shall be punishable by a fine of fifty dollars for each 
 occasion on which he so directs or iiermits the provisions 
 of this section to be violated by any officer, seaman, 
 or other person employed on board of such vessel. 
 Notice to be posted Sec. 4277. The master of every vessel bringing emi- 
 in emigrant-vosseis. ^^^^ passcngers to the United States shall post a 
 
 2i March, I860, c. .,, ■ . i ^- • .i -r. i- , -r, i •, 
 
 a, B. 3, V. 12, p. i. written or printed notice m the English, French, and 
 German languages containing the provisions of the two 
 preceding sections in a conspicuous place on the fore- 
 castle, and in the several parts of the vessel assigned 
 to emigrant passengers, and keep the same so posted 
 during the voyage ; and if he neglects so to do, he shall 
 be deemed guilty of a misdemeanor, and shall be pun- 
 ishable by a fine of not more than five hundred dollars. 
 Transportation of Sec. 4278. It shall not be lawful to transport, carry, 
 mtro-giycenne. — _^ ^^ convey, ship, deliver on board, or cause to be deliv- 
 B. i] V. u, p. 81. ' ' ered on board, the substance or article known or desig- 
 
Title XLVIII. — Commerce aiid Navigation. — Ch. 6. 653 
 
 nated as nitro-glycevine or glynoin oil, nitroleum or 
 blasting oil, or nitrated oil, or powder mixed with any 
 such oil, or fiber saturated with any such article or sub- 
 stance, upon or in any vessel or vehicle used or employed 
 in transporting passengers by land or water between a 
 place in any foreign country and a place within the 
 limits of any State, Territory, or district of the United 
 States, or between a place in one State, Territory, or 
 district of the. United States, and a place in any other 
 State, Territory, or district thereof. [ See §§ 5353-5355.] 
 Sec. 4279. It shall not be lawful to ship, send, or for- Pa eking and 
 
 „ , , .. , J marking mtro-gly- 
 
 ward any quantity of the substances or articles namea cerine. 
 
 in the preceding section, or to transport, convey, or 3 juiy, i866, c. 
 
 carrythe same by a vessel or vehicle of any description, gij. 
 
 upon land or water, between a place in a foreign country 
 and a place within the United States, or between a place 
 in one State, Territory, or district of the United States 
 and a place in any other State, Territory, or district 
 thereof, unless the same shall be securely inclosed, de- 
 posited, or packed in a metallic vessel surrounded by 
 plaster of Paris, or other material that will be non-ex- 
 plosive when saturated with such oil or substance, and 
 separate from all other substances, and the outside of 
 the package contammg the same be marked, printed, 
 or labeled in a conspicuous manner with the words 
 " Nitro-glycerine, dangerous." 
 
 Sec. 4280. The two preceding sections shall not be (^f^^f^H^ by 
 so construed as to prevent any State, Territory, district, states of traffic m 
 
 city, or town within the United States from regulating °-i^ff?P 
 
 or from prohibiting the traffic in or transportation of 
 those substances, between persons or places lying or 
 being within their respective territorial limits, or from 
 prohibiting the introduction thereof into such limits, 
 for sale, use, or consumption thereui. 
 
 Sec. 4281. If any shipper of platuia, gold, gold dust, ^u.mty of mas- 
 silver, bullion, or other precious metals, coins, jewelry, riers. 
 bills of any bank or public body, diamonds, or other ^^^s^Feb., isii,^ e.^ 
 precious stones, or any gold or silver in a manufactured ^gg- • ■ 
 or unmanufactured state, watches, clocks, or time-pieces 
 of any description, trinkets, orders, notes, or securities 
 for payment of money, stamps, maps, writmgs, title- 
 deeds, printings, engravings, pictures, gold or silver 
 
•t)54 U. S. Revised Statutes. 
 
 plate or plated articles, glass, china, silks in a manufac- 
 tured or unmanufactured state, and whether wrought 
 up or not wrought up with any other material, furs or 
 lace, or any of them, contained ui any parcel, or pack- 
 age, or trunk, shall lade the same as freight or baggage, 
 on any vessel, without at the time of such lading giv- 
 ing to the master, clerk, agent, or owner of such vessel 
 receiving the same a written notice of the true character 
 and value thereof, and having the same entered on the 
 bill of lading therefor, the master and owner of such 
 vessel shall not be liable as carriers thereof in any form 
 or manner ; nor shall any such master or owner be liable 
 for any such goods beyond the value and according to 
 the character thereof so notified and entered. 
 Loss by Are. Sec 4282. No owner of any vessel shall be liable to 
 
 3Mareh 1851 0. answer for or make good to any person any loss or 
 
 43. s. 1, T. 9, p. b3o. ° ■' '^ ■' 
 
 Walker vs. Trans- damage which may happen to any merchandise what- 
 
 portation Co., 3 soevcr, which shall be shipped, taken in, or put on 
 
 board any such vessel, by reason or by means of any 
 
 fire happenmg to or on board the vessel, unless such 
 
 fire is caused by the design or neglect of such owner. 
 
 Liability of owner Sec. 4283. The liability of the owner of any vessel, 
 
 not to exceed Ms » -u i j. i i j. j.- i 
 
 Interest. ^ov any embezzlement, loss, or destruction, by any per- 
 
 Ibid., s. 3. son, of any property, goods, or merchandise, shipped or 
 
 Norwich Co. cs. put Oil board of such vessel, or for any loss, damage, or 
 
 Wright, 13 WaU., f^ . ' ... l- 
 
 104; Allen vs. Mac- injury by collision, or for any act, matter, or thing, 
 Kay, 1 Sprague, 219. j^gg^ damage. Or forfeiture, done, occasioned, or in- 
 curred, without the privity or knowledge of such owner 
 or owners, shall in no case exceed the amount or value 
 of the interest of such owner in such vessel, and her 
 freight then pending, 
 of kfsses.''^ ''''^™^*' ^^^- ^'^^'^- Whenever any such embezzlement, loss, 
 3 March, 1851, o. 0^^ destruction is sufliered by several freighters or 
 43, 8. 4, T. 9, p. 635. owiiers of goods, wares, merchandise, or any property 
 Wright,''' 13 '^ Wail!; "Whatever, on the same voyage, and the whole value of 
 104; The steamboat the vessel, and her freight for the voyage, is not suffi- 
 
 City of Norwich, 1 . , , , i- j. i ^ i^ .ui i_ „ 
 
 Ben., 89. cient to make compensation to each of them, they shall 
 
 receive compensation from the owner of the vessel, in 
 proportion to their respective losses ; and for that pur- 
 pose the freighters and owner of the property, and the 
 owner of the vessel, or any of them, may take the ap- 
 propriate proceedings in any court, for the purpose of 
 
Title XLVIII. — Commerce and Navluatiun. — Ch. 6. 655 
 
 apportioning the sum for wliicli the owner of the vessel 
 may be liable among the parties entitled thereto. 
 
 Sec. 4285. It shall be deemed a sufficient compliance Transfer of in- 
 on the part of such owner with the requirements of ^tee°' ""'^'^'^ *° 
 this Title relating to his liability for any embezzlement, 3 March, i«5i, c. 
 loss, or destruction of any property, goods, or merchan- ^3. a- *■ v- 9, p- 636- 
 dise, if he shall transfer his interest in such vessel and wrig™°'i3^ Waiii 
 freight, for the benefit of such claimants, to a trustee, ^o*- 
 to be appointed by any court of competent jurisdiction, 
 to act as such trustee for the person who may prove to be 
 legally entitled thereto ; from and after which transfer 
 all claims and proceedings against the owner shall cease. 
 
 Sec. 4286. The charterer of any vessel, in case he when charterer 
 shall man, victual, and navigate such vessel at his own 's deemed owner. 
 expense, or by his own procurement, shall be deemed — ' " ^' ' ^' — ~ 
 the owner of such vessel -within the meaning of the mond, 12 Wall., 408. 
 provisions of this Title relating to the limitation of the 
 liability of the owners of vessels ; and such vessel, 
 when so chartered, shall be liable in the same manner 
 as if navigated by the owner thereof. 
 
 Sec. 4287. Nothing in the five preceding sections Remedies 
 shaU be construed to take away or affect the remedy 
 to which any partj'^ may be entitled, against the mas- 
 ter, officers, or seamen, for or on account of any embez- 
 zlement, injury, loss, or destruction of merchandise, or 
 property, put on board any vessel, or on account of any 
 negligence, fraud, or other malversation of such mas- 
 ter, officers, or seamen, respectively, nor to lessen or 
 take away any responsibility to which any master or 
 seaman of any vessel may by law be liable, notwith- 
 standing such master or seaman may be an owner or 
 part owner of the vessel. 
 
 Sec. 4288. Any person shipping oil of vitriol, un- Shipping iuflam- 
 
 ,--,. .J, , -, ,, ■,. mable piaterials. 
 
 slaked lime, mflammable matches, or gunpowder, in a 
 vessel taking cargo for divers persons on freight, with- 
 out delivering, at the time of shipment, a note in writ- 
 ing, expressing the nature and character of such mer- 
 chandise, to the master, mate, officer, or person in 
 charge of the lading of the vessel, shall be liable to the 
 United States in a penalty of one thousand dollars. 
 But this section shall not apply to any vessel of any de- 
 ;Scription whatsoever used in rivers or inland navigation. 
 
 served. 
 Ibid., s. (J. 
 
 Ibid., s. 7. 
 
65G 
 
 U. S. Revised Statutes. 
 
 Exception to limi- Sec 4289. The provisions of tliis Title relating to 
 tation of Uabuity. ^j^^ limitation of the liability of the owners of vessels 
 is^^i!"^' ^^^^' "' shall not apply to the owners of any canal-boat, barge, 
 
 Propeller Niagara Or lighter, or to any vessel of any description whatso- 
 26-MoOT?is^ T^Zs- ever used in rivers or inland navigation. 
 
 portation Co., 24 
 
 How., 1. 
 
 CHAPTER TWO. 
 
 ti;ansportation of passengers and 
 meechandise. 
 
 See. Sec. 
 
 4463. Officers and crew of passen- 4484. 
 
 ger-steamers. 
 
 4464. Number of passengers allow- 
 
 able. 
 
 4465. Penalty tor carrying too great 4485. 
 
 a number ot passengers. 
 
 4466. Special permit for excur- 4486. 
 
 sions. 
 
 4467. List of passengers. 
 
 4468. Penalty for failure to keep 44S7, 
 
 passenger Ust. 
 
 4469. Recovery of penalties. 
 
 4470. Precautions against Are. 4488. 
 
 4471. Pire-pumps and hose. 
 
 4472. Dangerous articles not to 
 
 Lie carried on passenger- 4489, 
 steamers. 
 
 4473. Penalty for unlawfully car- 4490. 
 
 rying cotton or hemp. 
 
 4474. License for use ot petroleum 
 
 in the production of mo- 4491 
 tive-power. 
 
 4475. Mode of packing dangerous 4492. 
 
 articles. 
 
 4476. Punishment tor unlawfully 4493. 
 
 shipping dangerous arti- 
 cles. 
 
 4477. Watchmen on passenger- 4494. 
 
 steamers. 
 
 4478. Penalty for failure to keep 
 
 watchmen. 4495. 
 
 4479. Fire-extinguishers. 
 
 4480. Wire tiUer-ropes, bell-pulls, 4496. 
 
 etc., tor passenger-steam- 4497. 
 ers. 
 
 4481. Boats tor river-steamers. 4498. 
 
 4482. Lite-preservers for river- 
 
 steamers carrying passen- 
 gers. 4499. 
 
 4483. Fire-buckets, axes, etc., for 
 
 river-steamers carrying I 4500. 
 passengers. ' 
 
 Stairways and gangways 
 on river-steamers carry- 
 ing passengers on main 
 deck. 
 
 Accommodation of deck-pas- 
 sengers. 
 
 Penalty tor not providing 
 proper accommodations 
 tor passengers. 
 
 River-steamers to be an- 
 chored when navigation 
 is unsafe. 
 
 Lite-boats, etc., on ocean, 
 lake, and sound steam- 
 ers. 
 
 Penalty tor failure to provide 
 Ute-boats, etc. 
 
 Water-tight bulk-heads in 
 lake-steamers carrying 
 passengers. 
 
 Use ot instruments tor secu- 
 rity ot lite. 
 
 Barges carrying passen- 
 gers. 
 
 LiabiUty ot master and own- 
 ers tor damage to passen- 
 gers. 
 
 Two copies of this Title to be 
 kejit on each passenger- 
 steamer. 
 
 Name ot steamer to be ex- 
 hibited. 
 
 Duties ot customs officers. 
 
 Penalty tor omission ot duty 
 by customs officer. 
 
 Registry, enrollment, etc., de- 
 nied to vessels not com- 
 plying with the law. 
 
 Penalty tor failure to com- 
 ply- 
 
 Penalty in cases not provid- 
 ed for. 
 
 Officers and crew ot Sec. 4463. No Steamer carrying passengers shall 
 passenger-steamers. , „ ., ii_ni_ -i 
 
 „„ °^ — -^=- — depart from any port unless she shall have m her 
 
 28 Feb., 1871, o. -"^ •' ^ 
 
 100, s. 14, V. 16, p. 446. service a full complement of licensed officers and full 
 
Title Lll. — Regulation op Steam- Vessels.— Ch. 2. 657 
 
 crew, sufficient at all times to manage the vessel, in- 
 cluding the proper number of watchmen. But if any 
 such vessel, on her voyage, is deprived of the services 
 of any licensed officer, without the consent, fault, or 
 collusion of the master, owner, or any person interested 
 in the vessel, the deficiency may be temporarily sup- 
 plied, until others licensed can be obtained. 
 
 Sec. 44C4. The inspectors shall state in every certifl- Number of pas- 
 cate of inspection granted to steamers carrying passen- ^engers aUowabfe. 
 gers, other than ferry-boats, the number of passengers loo, s. 48,'p.454.' 
 of each class that any such steamer has accommoda- 
 tions for, and can carry with prudence and safety. 
 
 Sec. 4465. It shall not be lawful to take on board of Penalty for carry- 
 any steamer a greater number of passengers than is IJ^f of°pSt6ngere?^" 
 stated in the certificate of inspection ; and for every iwd. ~ 
 
 violation of this provision the master or owner shall be 
 liable, to any iierson suing for the same, to forfeit the 
 amount of passage-money and ten dollars for each pas- 
 senger beyond tWe number allowed. 
 
 Sec 4466. If any passenger-steamer engages in ex- Special permit for 
 
 ©xcTirsions 
 
 cursions, the inspectors shall issue to such steamer a ^^.^ '■ 
 
 special permit, in writing, for the occasion, in which 
 shall be stated the additional number of passengers that 
 may be carried, and the number and kind of Ufe-saving 
 appUances that shall be provided for the safety of such 
 additional passengers; and they shall also, in their 
 discretion, limit the route and distance for such ex- 
 cursions. 
 
 Sec 4467. The master of every passenger-steamer ^ijsts ot passen- 
 
 shall keep a correct list of all the passengers received ^^^b^j 3,49. 
 
 and delivered from day to day, noting the places where 
 received and where landed, which record shall be 
 opened to the inspection of the inspectors and officers 
 of the customs at all times ; and the aggregate number 
 of passengers shall be furnished to inspectors as often 
 as called for-; but on routes not exceeding one hundred 
 miles, the number of passengers, if kept, shall be suffi- 
 cient. 
 
 Sec 4468. Every master of any passenger-steamer Jen^^^^mu^e 
 
 who fails, through negligence or design, to keep a hst ugt^ 
 
 of passengers, as required by the preceding section, ibid. 
 shall be Uable to a penalty of one hundred dollars. 
 
 42 
 
658 U. S. Revised Statutes. 
 
 Eeeovery o{ pen- Sec. 4469. The penalties imposed by sections forty- 
 
 "'"""■ . four hundred and sixty-five and forty-four hundred and 
 
 loof s.'^/g?'' ^^''^' °' sixty-eight shall be a lien upon the vessel in each case, 
 but a bond may, as provided in other cases, be given 
 to secure the satisfaction of the judgment. 
 Precautions Sec. 4470. Every steamer carrying passengers or 
 
 a gainst flrc. freight shall be provided with suitable pipes and valves 
 
 Ibid., s. 2, p. MO. g^^.j-g^^,jjg(j^ ^.Q ^Yie boiler, to convey steam into the hold 
 and the different compartments thereof, to extinguish 
 fire ; and every stove used on board of any such vessel 
 shall be well and securely fastened, so as to prevent it 
 from being moved or overthrown, and all wood- work 
 or other ignitible substances about the boilers, chimneys, 
 cook-houses, and stove-pipes exposed to ignition, shall 
 be thoroughly shielded by some incombustible material, 
 in such a manner as to leave the air to circulate freely 
 between such material and wood- work or other ignitible 
 substance ; and before granting a certificate of inspec- 
 tion, the inspector shall require all other necessary 
 provisions to be made throughout such vessels to guard 
 against loss or danger from fire. 
 Fire-pumps and ^'E.c. 4471. Every steamer permitted by her certifi- 
 
 t'"S6. cate of inspection to carry as many as fifty passengers, 
 
 Ibid., s. 3. ■ ^^ upward, and every steamer carrying passengers, 
 which also carries cotton, hay, or hemp, shall be pro- 
 vided with a good double-acting steam fire-pump, or 
 other equivalent apparatus for throwing water. Such 
 pump or other apparatus for throwing water shall be 
 kept at all times and at all seasons of the year in good 
 order and ready for immediate use, having at least two 
 pipes of suitable dimensions, one on each side of the ves- 
 sel, to convey the water to the upper decks, to which 
 pipes there shall be attached, by naeans of stop-cocks or 
 valves, both between decks and on the upper deck, good 
 and suitable hose of sufficient strength to stand a pres- 
 sure of not less than one hundred pounds to the square 
 inch, long enough to reach to all parts of the vessel and 
 properly provided with nozzles, and kept in good order 
 and ready for immediate service. Every steamer ex- 
 ceeding two hundred tons burden and carrying passen- 
 gers shall be provided with two good double-acting 
 flre-jjumps, to be worked by hand ; each chamber of 
 
Title LII. — Regulation of Steam-Vessels. — Ch. 2. 659 
 
 such pumps, except pumps upon steamers in service on 
 the twenty-eighth day of February, eighteen hundred 
 and seventy-one, shall be of sufficient capacity to con- 
 tain not less than one hundred cubic inches of water ; 
 and such pumps shall be placed in the most suitable 
 parts of the vessel for efficient service, having suitable 
 well-fltted hose to each pump, of at least one-half the 
 vessel in length, kept at all times in perfect order, and 
 shipped up and ready for immediate use. On every 
 steamer not exceeding two hundred tons, one of such 
 pumps may be dispensed with. Each fire-pump thus 
 prescribed shall be supplied with water by means of a 
 suitable pipe connected therewith, and passing through 
 the side of the vessel so low as to be at all times under 
 water when she is afloat ; and no fire-pump thus pro- 
 vided for shall be placed below the lower deck of the 
 vessel. Every steamer shall also be provided with a 
 pump which shall be of sufficient strength and suit- 
 ably arranged to test the boilers thereof. 
 
 Sec. 4472. No loose hay, loose cotton, or loose hemp. Dangerous arti- 
 camphene, nitro-glycerine, naphtha, benzine, benzole, ried on passenger- 
 coal-oil, crude or refined petroleum, or other like ex- steamers. 
 
 plosive burning fluids, or like dangerous articles, shall ^oo, s. i, p. ai. ' "' 
 be carried as freight or used as stores on any steamer 
 carrying passengers ; nor shall baled cotton or hemp 
 be carried on such steamers unless the bales are com- 
 pactly pressed and thoroughly covered with bagging 
 of similar fabric, and secured with good rope or iron ^g^^ gg 4278-4280, 
 bands ; nor shall gunpowder be carried on any such 5353-5355.] 
 vessel, except under special license ; nor shall oil of 
 vitriol, nitric or other chemical acids be carried on 
 such steamers except on the decks or guards there- 
 of, or in such other safe part of the vessel as shaU 
 be prescribed by the inspectors. Refined petroleum, 
 which will not ignite at a temperature less than one 
 hundred and ten degrees of Fahrenheit thermometer, 
 may be carried on board such steamers upon routes 
 where there is no other practical mode of transportmg 
 it, and under such regulations as shall be prescribed 
 by the board of supervising mspectors with the ap- 
 proval of the Secretary of the Treasury ; and oil or 
 spirits of turpentme may be carried on such steamers 
 
660 U. S. Revised Statutes. 
 
 when put up in good metallic vessels, or casks or bar- 
 rels well and securely bound with iron and stowed in 
 a secure part of the vessel ; and friction-matches may 
 be carried on such steamers when securely packed in 
 strong tight chests or boxes, the covers of which shall 
 be well secured by locks, screws, or other reliable 
 fastenings, and stowed in a safe part of the vessel at a 
 secure distance from any fire or heat. All such other 
 provisions shall be made on every steamer carrying 
 passengers or freight, to guard against and extinguish 
 Are, as shall be prescribed by the board of supervising 
 inspectors, and approved by the Secretary of the 
 Treasury. 
 Penalty for un- Sec. 4473. Every bale of cotton or hemp that shall 
 
 cotton o/hemp?^'^^ t)e shipped or carried on any passenger-steamer, with- 
 28 Feb., 1871, c. out conforming to the provisions of the preceding sec- 
 
 10 , s. i, p. 441. ^^Qj^^ shall be subject to a penalty of five dollars, and 
 shall be liable to seizure and sale to secure the pay- 
 ment of such penalty. 
 License tor use of Sec. 4474. The Secretary of the Treasury may grant 
 
 production of' mo- permission to the owner of any steam-vessel to use any 
 
 tive power. invention or process for the utilization of petroleum 
 
 Ibid., p. irti. Qj, other mineral oils or substances in the production of 
 motive-power, and may make and enforce regulations 
 concerning the application and use of the same for such 
 purpose. But no such permission shall be granted, 
 unless upon the certificate of the supervising inspector 
 of steamboats for the district wherein such vessel is 
 registered, and other satisfactory proof that the use 
 of the same is safe and eflBcient ; and upon such proof, 
 and the approval of such certificate by the Secretary 
 of the Treasury, a special license for the use of such 
 process or invention shall issue under the seal of the 
 Treasury Department. [See § 4424.J 
 Mode of packing Sec. 447.5. All gunpowder, nitro-glycerine, camphene, 
 
 dangerous articles, naphtha, benzine, benzole, coal-oil, crude or refined petro- 
 ■' ■ ■ leum, oil of vitriol, nitric or other chemical acids, oil 
 
 or spirits of turpentine, friction-matches, and all other 
 articles of like character, when packed or put up for 
 shipment, shall be securely packed and put up separately 
 from each other and from all other articles ; and the 
 package, box, cask, or other vessel containing the 
 
Title LII. — Regulation of Steam-Vessels. — Ch. 2. 661 
 
 same shall be distinctly marked on the outside, with 
 the name or description of the article contained therein. 
 
 Sec. 4476. Every person who packs or puts up, or Punishment for 
 causes to be packed or put up for shipment, any gun- ^^I^rart^^^ 
 powder, nitro-glycerine, camphene, naphtha, benzine, 28 Feb., isvi, o. 
 benzole, coal-oil, crude or refined petroleum, oil of ^^' ^- ^• 
 vitriol, nitric or other chemical acids, oil or spirits of 
 turpentine, friction-matches, or other articles of like 
 character, otherwise than as directed by the preceding 
 section, or who knowingly ships or attempts to sliip rsee^ 4278-4280, 
 the same, or delivers the same to any such vessel as 
 stores, unless duly packed and marked, shall be deemed 
 guilty of a misdemeanor, and punished by fine not ex- 
 ceeding two thousand dollars, or imprisonment not ex- 
 ceeding eighteen months, or both ; one-half of the fine 
 to go to the informer, and the articles to be liable to 
 seizure and forfeiture. 
 
 Sec. 4477. Every steamer carrying passengers during watchman on pas- 
 the night-time shall keep a suitable number of watch- sspser-s^eamers. — 
 men in the cabins, and on each deck, to guard against 
 fire or other dangers, and to give alarm in case of ac- 
 cident or disaster. 
 
 Sec. 4478. For any neglect to keep the watchman punishment for 
 required by the preceding section, the license of the ^^atehmen*" ^^"^ 
 ofacer in charge of the vessel for the time being shall ibid, 
 be revoked; and every owner of such vessel who 
 neglects or refuses to furnish the number of men 
 necessary to keep watch as required shall be fined one 
 thousand dollars. 
 
 Sec. 4479. The board of supervising inspectors may Pire-extinguish- 
 
 require steamers carrymg either passengers or freight ers_ 
 
 to be provided with such number and kind of good and ' ■ 
 efficient portable fire-extinguishers as, in the judg- 
 ment of the board, may be necessary to protect them 
 from fire when such steamers are moored or lymg at a . 
 wharf without steam to work the pumps. 
 
 Sec. 4480. Every steamer carrying passengers shall ^^ w^re^aii™|,«. 
 be provided with wire tiller-ropes, or iron rods or passenser-steamers. 
 chains, for the purpose of steering and navigating the ibid., s. lo, p. us. 
 vessel, and shall employ wire bell-pulls for signalizing 
 the engineer from the pUot-house, together with tubes 
 of proper size so arranged as to return the sound of the 
 
662 U. S. Revised Statutes. 
 
 engine-bells to the pilot-house, or other arrangemeii I to 
 repeat back the signal. But on any such vessel navi- 
 gated by tlie mariners' compass, so much of such wire 
 rope or chain may be dispensed with and disused as 
 shall influence or disturb the working of the com- 
 pass. 
 Boats for river- Sec. 4481. Every steam-vessel navigating rivers only, 
 except ferry-boats, freiglit-boats, canal-boats, and tow- 
 
 steamers. 
 
 100, s. 7, p. 442.' "' ing-boats, of less than fifty tons, shall have at least one 
 good substantial boat with lines attached, and proper- 
 ly supplied with oars, and kept in good condition at all 
 times, and ready for immediate use ; and in addition 
 thereto, every such vessel carrying passengers shall 
 have one or more metallic life-boats, fire-proof, and in 
 all respects good and substantial boats, of such dimen- 
 sions and arrangements as the board of supervising 
 inspectors by their regulations shall prescribe, which 
 boats shall be carried in the most convenient manner 
 to be brought into immediate use in case of accident. 
 But where the character of the navigation is such that, 
 in the opinion of the supervising inspector, the metallic 
 life-boats can be dispensed witli, he may exempt any 
 such vessel from carrying the same ; or may require a 
 substitute therefor, at his discretion. 
 Life-preservers Sec. 4482. Every such steam- vessel carrying passen- 
 
 for river-steamers i n i i ■ i j -ii i i-i: 
 
 carrying passen- g^rs shall also be provided with a good life-preserver, 
 
 8^''^- made of suitable material, for every cabin passenger for 
 
 1 ., b. , p. . .^yjjj^]^ gj-^g ^jj^ have accommodation, and also a good 
 life-preserver or float for each deck or other class pas- 
 senger which the inspector's certificate shall allow her 
 to carry, including the officers and crew ; which life- 
 preservers or floats shall be kept in convenient and 
 accessible places on such vessel in readiness for imme- 
 diate use in case of accident. 
 Pire-buoke ts, Sec. 44S3. Every such steam-vessel carrying passeii- 
 
 axes, etc., for river- „, , ij. , , ,;,,, 
 
 steamers carrying gers, ot two hundred tons burden or less, shall also 
 passengers. j^ggp g^^ jgg^gj. eighteen fire-buckets and two water- 
 
 barrels, and shall have not less than four axes ; and 
 every such steamer of over two hundred tons, and not 
 less than five hundred tons burden, shall carry not less 
 than twenty-four buckets, four water-barrels, and six 
 axes; and every such steamer of over five hundred 
 
Title LII. — Regulation op Steam-Vessels. — Ch. 2. 663 
 
 tons shall carry not less than thirty-five buckets, six 
 water-barrels, and eight axes. The buckets and barrels 
 shall be kept in convenient places and filled with water, 
 to be in readiness in case of fire, and the axes shall be 
 kept in good order and ready for immediate use. 
 Tanks of suitable dimensions and arrangement, or buck- 
 ets in sufficient number, maybe substituted for barrels. 
 
 Sec. 4481. Every such steam- vessel carrying passen- stairways and 
 gers on the main-deck shall be provided with perma- ft'^mera "oaring 
 nent stairways and other sufficient means, convenient pasengers on main- 
 to the passengers, for their escape to the upper deck, 28 Feb., i87i, c. 
 in case of tlie vessel sinking or of other accident, en- i™. s. 9. 
 dangering life ; and in the stowage of freight upon 
 such deck, where passengers are carried, gangways or 
 passages, sufficiently large to allow persons to pass 
 freely through them, shall be left open both fore and 
 aft of the vessel, and also to and along the guards on 
 each side. 
 
 Sec. 4485. The captain or mate of every such steam- Accommodation 
 
 , , • J 1 u 11 of deck-passengers. 
 
 vessel carrying passengers upon the mam-deck sriail -^^ ■ 
 
 assign to all deck-passengers, when taking passage, 
 the space on deck they may occupy during the voy- 
 age, and such space shall not thereafter be occupied 
 by freight, nor over-crowded by other persons, nor 
 shall freight be stowed about the boilers or machinery, 
 in such a manner as to obstruct or prevent the en- 
 gineer from readily attending to his duties. „ ,^ . . 
 
 ° . , , . 1. J 1 • • „f P e nalty for not 
 
 Sec. 4486. For every violation of the provisions ot pro^idiig proper 
 the two preceding sections the owners of the vessel ^««~r^*^ 
 shall be punished by a fine of three liundred dollars. -j^_ 
 
 Sec. 4487. On any steamers navigating rivers only. River-steamers to 
 when, from darkness, fog, or other cause, the pilot or ^^a^^^tio^ is^un^ 
 
 watch shall be of opinion that the navigation is unsafe, sate_ 
 
 or, from accident to or derangement of the machinery itad., s. 42, p. . 
 
 of the boat, the chief engineer shall be of the opinion 
 
 that the further navigation of the vessel is unsafe, the 
 
 vessel shall be brought to anchor, or moored as soon 
 
 as it can prudently be done : Provided, That if the 
 
 person in command shall, after being so admonished by 
 
 either of such officers, elect to pursue such voyage, he 
 
 may do the same ; but in such case both he and the 
 
 owners of such steamer shall be answerable for all 
 
664 U. S. Revised Statutes. 
 
 damages which shall arise to the person of any pas- 
 senger, or his baggage, from such causes in so pursu- 
 ing the voyage, and no degree of care or diligence shall 
 in such case be held to justify or excuse the person in 
 command, or the owners. 
 Life-boats, etc., Sec. 4488. Every steamer navigating the ocean, oi' 
 sound steirne^,''"'^ any lake, bay, or sound of the United States, shaU be 
 28 Feb., 1871, "iT provided with such numbers of life-boats, floats, rafts, 
 100, s. 52, p. 455. life-preservers, and drags, as will best secure the safety 
 of all persons on board such vessel in case of disaster ; 
 and every sea-going vessel carrying passengers, and 
 every such vessel navigating any of the northern or 
 northwestern lakes, shall have the life-boats required 
 by law, provided with suitable boat-disengaging ap- 
 paratus, so arranged as to allow such boats to be safely 
 launched while such vessels are under speed or othei-- 
 wise, and so as to allow such disengaging apparatus 
 to be operated by one person, disengaging both ends 
 of the boat simultaneously from the tackles by which 
 it may be lowered to the water. And the board of 
 supervising inspectors shall fix and determine, by their 
 rules and regulations, the kind of life-boats, floats, 
 rafts, life-preservers, and drags that shall be used on 
 such vessels, and also the kind and capacity of pumps 
 or other appliances for freeing the steamer from water 
 in case of heavy leakage, the capacity of such pumps 
 or appliances being suited to the navigation in which 
 the steamer is employed. 
 Penalty lor fail- Sec. 4489. The owner of any such steamer who neg- 
 boat^!eto.°'^'^'' "'"' ^s'^ts or refuses to provide such life-boats, floats, rafts, 
 Ibid. life-preservers, drags, pumps, or appliances, as are, un- 
 der the provisions of the preceding section, required 
 by the board of supervising inspectors, and approved 
 by tlie Secretary of the Treasury, shall be fined one 
 thousand dollars. 
 Water-tight bulk- Sec. 4490. Every sea-going steamer, and every 
 8 t*'eamers' rai4tag Steamer navigating the great northern or northwest- 
 passengers^ ern lakes, carrying passengers, the building of which 
 
 shall be completed after the twenty-eighth day of Au- 
 gust, eighteen hundred and seventy-one, shall have not 
 less than three watertight cross-bulk-heads, such bulk- 
 heads to reach to the main-deck in single-decked ves- 
 
 Ibid., 8. 53. 
 
Title LI I. — Regulation of Steam-Vessels. — Ch. 2. 665 
 
 sels, otherwise to the deck next below the main-deck; 
 to be made of iron plates, sustained upon suitable 
 frame-work ; and to be properly secured to the hull of 
 the vessel. The position of such bulk-heads and the 
 strength of material of which the same shall be con- 
 structed shall be determined by the general rules of 
 the board of supervising inspectors. 
 
 Sec. 4491. No kind of instrument, machine, or equip- use of instru- 
 ment, for the better security of life, provided for by ^^^}^_ ^"'^ """^"^y 
 this Title, shall be used on any steam-vessel which 28 Feb., i87i, c. 
 shall not first be approved by the board of supervising ^°''' ^- ^i- P- ^^■ 
 inspectors, and also by the Secretary of the. Treasury. 
 
 Sec. 4492. Every barge carrying passengers, while Barges earryinp; 
 in tow of any steamer, shall be subject to the provis- '^^lli^^^^'iti, p. tb-s. 
 ions of this Title relating to fire-buckets, axes, life- 
 preservers, and yawls, to such extent as shall be pre- 
 scribed by the board of supervising inspectors ; and for 
 any violation of this section the penalty shall be two 
 hundred dollars, recoverable one-half for the use of the 
 
 informer. 
 
 Sec 4493. Whenever damage is sustained by any LiabiUty of mas- 
 
 1 • -a iMcT^r. ter and owners tor 
 
 passenger or his baggage, from explosion, nre, collision, damage to passen- 
 
 or other cause, the master and the owner of such ves- g*^^^-^ ^ ^^ . 
 
 sel, or either of them, and the vessel shall be Uable to ' •• • • 
 each and every person so injured, to the full amount 
 of damages if it happens through any neglect or failure 
 to comply with the provisions of this Title, or through 
 known defects or imperfections of the steaming appar- 
 atus or of the hull ; and any persons sustaining loss or 
 injury through the carelessness, negUgence, or wiUful 
 misconduct of any master, mate, engineer, or pilot, or 
 his neglect or refusal to obey the laws governing the 
 navigation of such steamers, may sue such master, 
 mate, engineer, or pilot, and recover damages for any 
 such injury caused by any such master, mate, engineer, 
 
 or pilot. [See §5344.] , ^ 
 
 Sec. 4494. Every master or commander of any steam- ^^.o^-^^e^ott^^ 
 
 vessel carrying passengers shall keep on board of such , p,,,enger- 
 
 vessel at least two copies of the provisions of this Title, — ^-g^;-^;^ 
 
 to be furnished to him by the Secretary of the Treasury; 
 
 and if the master or commander neglects or refuses to 
 
 do so, or shall unreasonably refuse to exhibit a copy of 
 
officers. 
 Ibid., s. 30, p. i50. 
 
 666 U. S. Revised Statutes. 
 
 the same to any passenger who asks for it, he shall be 
 
 liable to a penalty of twenty dollars. 
 
 Name of steamer Sec. 4495. Every steam-vessel of the United States, 
 
 to be exhibited. ^^ addition to having her name painted on her stern, 
 
 m%^50,"p.^i5t "' shall have the same conspicuously placed in distinct, 
 
 plain letters, of not less than six inches in length, on 
 
 each outer side of the pilot-house, if it has such, and 
 
 in case the vessel has side- wheels, also on the outer 
 
 side of each wheel-house ; and if any such steamboat 
 
 be found without having her name placed as required, 
 
 she shall be subject to the same penalty and forfeiture 
 
 as provided by law in the case of a vessel of the United 
 
 States found without havmg her name, and the name 
 
 of the port to which slie belongs, painted on her stern. 
 
 Duties of customs Sec. 4496. All collectors, or other chief officers of the 
 
 customs, and all inspectors within the several districts, 
 
 shall enforce the provisions of this Title against all 
 
 steamers arriving and departing. 
 
 Penalty lor omis- Sec. 4497. Every collector, or other chief officer of 
 
 tOTns°offloer ^^ ^^^' *^® custoins, or inspector, who negligently or intention- 
 
 "J^, ally omits any duty under the preceding section, shall 
 
 be liable to removal from office, and to a penalty of 
 
 one hundred dollars for each offense, to be sued for in 
 
 an action of debt. 
 
 Registry, enroll- Sec. 4498. No license, register, or enrollment shall 
 
 to^'vesseis'not'^ Mm^ ^6 granted, nor any other papers be issued, by any col- 
 
 piying with thf law, lector or other chief officer of the customs, to any 
 
 Ibid., s. 1, p. 440. YgJ^J^^,^ propelled in whole or in part by steam, until he 
 
 shall have satisfactory evidence that all the provisions 
 
 of this Title have been fully complied with. 
 
 Penalty for fail- Sec. 4499. If any vessel prni)elled in whole or in part 
 
 '^"' °°°^^ ^' by steam be navigated without complying with the 
 
 terms of this Title, the owner shall be liable to the 
 United States in a penalty of five hundred dollar^ fm- 
 each offense, one-half for the use of the informer, f( >r 
 which sum the vessel so navigated shall be Uable, and 
 may be seized and proceeded against by way of libel in 
 any district court of the United States having juris- 
 diction of the offense. 
 Penalty in cases Sec. 4500. The penalty for the ^•iolation of any 
 not piovi e^ or^ provision of this Title, not otherwise specially provided 
 ' for, shall be a fine of five hundred dollars, recoverable 
 one-half for the use of the informer. 
 
INDEX, 
 
 THE REFERENCES ARE TO THE SECTIONS. 
 
 SECTIONS. 
 
 Abatement, effect of a joint deposit, 56. 
 169, 388. f > ' 
 
 death of a joint bailee, 116. 
 return under a joint bailment, 169, 
 
 388. 
 joint property, 416. 
 Acceptance, on return after conversion. 
 407, 59, 60, 61. 
 of trust for third person, 100. 
 of a consignment of goods, 591-593. 
 of goods by consignee from carrier, 
 
 673-677. 
 special, by common carrier, 552-595, 
 
 609. 
 of goods made to order, 410-413. 
 Accession, right or title by, 52. 
 increase or increment, 163, 403. 
 to be accounted for by pledgee, 300. 
 to chattels repaired, 419. 
 when things are made on shares, 447, 
 416. 
 AcciBKNT, INEVITABLE, not same as act 
 of God, 537-546. 
 bailees not liable for loss by, 148-152. 
 pledgees, 2.34, 235. 
 bailees for hire, 327-330, 833. ■ 
 losses by accidental fire, 370, 463. 
 in an inn, under statute, 463, 467. 
 carrier liable for, 549. 
 not under statute, 558. 
 goods or parcels accidentally left, 90. 
 Act of God, bailee not liable for, 171, 
 532-536. 
 innkeepers are not, 462^64. 
 common carriers are not, 532-536. 
 ■what are considered acts of God, 5^7- 
 
 546. 
 freshets, storms, frost, 537. 
 delays from snow and frost, 538. 
 duty to provide against, 541. 
 effect of under contracts, etc., 539, 
 540, 543. 
 
 , _, SECTIONS, 
 
 ACT OP God, bringing goods under, 541. 
 obstructions in channel, .542. 
 losses by fire— exceptions by statute, 
 
 543. 
 violent acts of nature, 544. 
 effect of on freight, 545. 
 not equivalent to sea-perils, 546. 
 Acts op Conveksion; see Conversion, 
 
 Trover. 
 Action, what parties may bring — bailees. 
 36,37. "^ 
 
 trespass or trover, 38, 39. 
 election of, 39, 111, 101, 113, 156. 
 statute of limitations, 40-42. 
 by a third person, when, 100. 
 by whom to be brought, 96-105. 
 against depositary, 40-42. 
 against mandatary, 96-105. 
 affects burden of proof, 101, 106-110. 
 by what party, 102-105. 
 forms of action, 101, 102, 110, 113. 
 against borrower, 143-169, 174. 
 against third parties, 170. 
 on debt secured by pledge, 231. 
 on collaterals, 241-244. 
 to foreclose a pledge, 279, 297. 
 to redeem pledge, 31.3-315. 
 by mortgagor to redeem, 181, 313. 
 by pledgee in equity, 317. 
 by common carrier, 614. 
 against common carriers, 655-677, 5S6. 
 Adverse Claimants, filing a bill of in- 
 terpleader to bring in, 55. 
 Appreightment, contracts of, 481. 
 Agents and Factors, powers of ,214-218. 
 resemblance between factor and 
 
 pledgee, 275-278. 
 right to sell, 288-293. 
 agents for collection, 90, 91, 607. 
 under a direction, C. O. D., 623. 
 where a carrier assumes special duties, 
 607. 
 
ms 
 
 INDEX. 
 
 SECTIONS. 
 
 AiasTEKS — rights and duties of, :;2S-;j:;i. 
 have a special property, .'J2S-:>;|. 
 no common law lien, 331. 
 a lien by statute, note to, 331. 
 AnAJjOGIes, between duty and debt, 160- 
 168. 
 between innkeeper and carrier, 471, 
 
 51 s, (>-,5. 
 between factor and pledgee, 27!J-27s, 
 between mortgages and pledges, 170- 
 iss. 
 Architect, liability of, 429. 
 Assumpsit, when it lies for money in 
 
 hands of bailee, 80, 100, 111). 
 Attorneys, contracts for services, 430, 
 431. 
 English rnle, 431. 
 Authority, bailees for use, receiptor, 
 
 to store goods, sheriff's, 34. • 
 
 of owner or party in interest, S4, 100. 
 
 of the lender, 133, 134, 17(>. 
 
 to create a pledge, 191-20I. 
 
 may not pledge salary or pension, 
 
 ao:;. 
 
 to vote on stock held in pledge, 210. 
 
 to sell pledge or collect, 279-297. 
 Average, on a loss by jettison, 612. 
 
 what included in general, 596, 612. 
 Baggage, liability for, 408, 502, 570-573. 
 
 fare covers baggage, 699-701. 
 
 to be checked, 571. 
 
 lien on baggage, 648. 
 
 on through lines, 572, 573. 
 
 delivery of, 558, 500, 574. 
 
 checks given for, 574. 
 
 extra baggage, 575, 576. 
 
 delivery of to carriers, 571. 
 
 the delivery nuist be fairly made, 
 529. 
 
 left behind with carrier, 90. 
 
 what amount of money with baggage, 
 529. 
 
 action for that of son, servant or 
 agent, 570. 
 
 sending, without passenger, 576. 
 Bailee, competency of persons to act as, 
 13-17. 
 
 a finder regarded as, 18-24. 
 
 has a special property, 36-42. 
 
 liability of, wjien acting gratuitously, 
 43-49, 78-,'^. 
 
 reasonable use of property, 32, 65. 
 
 treatment of sealed packages, 49, 67. 
 
 individual character of, .50. 
 
 voluntary engagement, 51. 
 
 restitution by, how made, 54-62. 
 
 conversion by, 58-62. 
 
 evidence against, 62-64. 
 
 cannot resist true owner, 62-64, 73. 
 BArLBB, of baggage or goods left acci- 
 dentally with carrier, 90. 
 
 contract by, consideration, 87-91. 
 
 SECTIONS. 
 
 Bailee, right of action by, 103-105. 
 converoion by — proof of, 106-109. 
 breacli of contract by, 110. 
 death of, 114-117. 
 
 for gratuitous use, borrower, 120-175. 
 for mutual benefit, pledges, 176-324. 
 difference between pledgee and mort- 
 gagee, 177-189, 206, 298. 
 capacity of parties to pledge, 189, 190. 
 his relation to the property, 191-201. 
 to the subject matter, 202-208. 
 to the mode of acquiring pledge, 209- 
 
 223. 
 to the original debt, 224-233. 
 pledgee's duty in presi-rving, 234-244. 
 his interest or property in pledge, 
 
 245-278. 
 how foreclosed, 270-297. 
 duty to account and restore, 298-311. 
 remedies by and against, 312-324. 
 Bailee for Hire, 325-449. 
 liability of, 327-.'j31. 
 lien under common and statute law, 
 
 331. 
 as a warehouseman, 332-354. 
 as a forwarder, 335-303. 
 as carrier and warehouseman, 336, 
 
 340. 
 raising or lowering goods, 343. 
 scope of duties, 344, 345. 
 misdelivery, etc., 348. 
 his lien, as warehouseman, 350, 351. 
 contract of receipts in store, etc., 352. 
 duty to redeliver, title, proof, 353, 
 
 354. 
 as wharfinger, 355-363. 
 his lien, 364r-308.' 
 his property and liability, 369-372. 
 his riglits under contract, 373-383. 
 when he is an infant, 378. 
 care an(} diligence required, 384-388. 
 liability in respect to servants, 389- 
 
 398. 
 to restore goods, etc., 399-409. 
 title under bailment for services, 
 
 414-410. 
 right of property and lien, 420-424, 
 
 448. 
 losses — how borne — insurance, 425. 
 use of diligence and skill, 426, 444, 
 
 446. 
 must fulfill contract, etc., 447. 
 Bailment, general definitions, 1, 2. 
 classes of, 3. 
 • of ehoses in action, 2. 
 degrees of liability, 4. 
 degrees of diligence, .5-9. 
 gratuitous on part of bailee, 10-119. 
 gratuitous on part of bailor, 120-175. 
 for mutual benefit of parties, 176-750. 
 pledges or pawns, 176^324. 
 for hire, 325-331-449. 
 for labor and services, 410-425, 443. 
 
INDEX. 
 
 669 
 
 SECTIONS. 
 
 BAiL,MENT,by delivery to innkeepers, 450- 
 
 479. 
 by delivery to special or quasi-carriers, 
 
 480-494. 
 by delivery to common carriers, 495- 
 
 750. 
 Bailor, parties acting as, 13-17. 
 general property in, 3t>-42. 
 rights of, 54-62. 
 must bear expenses, 66-68. 
 goods deposited by servant, 70, 71. 
 letting animals for their keep, 85. 
 delivering to keep or return, 85, 86. 
 right of action by, 102-105. 
 when recovery by passes title, 111. 
 effect of his death, 117. 
 Without Reward, 120-175. 
 of things to be replaced in kind, 120. 
 property or interest of parties, 128- 
 
 134. 
 degree of care required, 135-137. 
 use of the goods, 188-141. 
 ordinary expenses, 142. 
 fraud, larceny, etc., 143-140. • 
 not liable for certain losses, 147-154. 
 evidence, actions, etc., 155-151). 
 duty to restore, 1()0-175. 
 lender's title not to be disputed, 173, 
 
 174. 
 Under Contract of Pledge, 176-;J24. 
 general title in 'pledgor, 176, 186, 188, 
 
 206, 298. 
 right or power to create pledge, 191- 
 
 201. 
 of what property, 202-208. 
 mode of making, 209-223. 
 relation of pledge to original debt, 
 
 224-233. 
 pledge — how preserved, 234-244. 
 what property in pledgor, 245-278. 
 with reference to a sale or foreclosure, 
 
 279-297. 
 right to have a return, 298-311. 
 remedies to enforce, 312-324. 
 Under Bailment for Hire, 325. 
 of goods or chattels for use, 328, 331, 
 
 369-375. 
 of goods for storage, 332-354. 
 delivering goods to forwarder, 335, 
 
 516. 
 of goods with carrier, 336-340. 
 Bailok, sales by, effect of, 347. 
 bound by custom, 351. 
 . subject to law of lien, 350, 364-369. 
 hire, after goods perish, 375. 
 under a Sunday contract, 377. 
 under an invalid contract, 377, 378. 
 right to insist on contract, 379-383. 
 must bear what expenses, 385. 
 where bailee recovers value of goods, 
 
 386. 
 under contract of hire or sale, 387. 
 under a joint bailment, 388. 
 
 SECTIONS 
 
 BAlLOit, liability for servants, 389-398. ' 
 right to have a return of goods, 399- 
 
 403. * 
 
 rights respecting mode and place, 404- 
 
 406, 408. 
 return after a conversion, 407. 
 after bailment ends, 409. 
 Fojt Labor and Sekvices, 410-419. 
 bailee's property and lien, 420-424. 
 losses, by whom borne, 425. 
 care and skill required, 443-446. 
 work must be done to pass title, etc., 
 
 447. r . r 
 
 lien for work, 448, 449. 
 Bank, effect of deposit in, 41. 
 special deposit in, 45-49. 
 receiving drafts and notes for collec- 
 tion, 91. 
 Bank Dibbctors, duties and liabilities, 
 
 92-95. 
 Babeatby, insurance against, 589. 
 
 thefts, etc., 589, 613. 
 Bankruptcy, effect of on bailment, 119. 
 acts and events working a transfer, 
 119. 
 Bahcjembn, when common carriers, 514. 
 Bill of Lading, nature and use of, 590. 
 use of as a pledge, 210-215, 590. 
 considered as a contract, 590-593. 
 fixing amount of freight, 592. 
 time for unloading, demurrage, etc., 
 
 593. 
 master's power to make, 594. 
 receipt in bill, 584, 585, 640. 
 clean bill, effect of, 596, 588. 
 usage to explain, 58S. 
 when a purchaser of vessel is bound 
 
 by, 590. 
 verbal contract, receipts under, 584. 
 losses under exceptions in, 597. 
 Bona fide Purchaser, of a pledge, 258, 
 266, 267. 
 advancors so considered, 193-197, 210- 
 
 21S. 
 of negotiable paper, 222, 306. 
 demand of note secured by coUat- 
 terals, 256. 
 Borrower, liability of, 5-7. 
 
 for what degree of skill and care, 135- 
 
 137. 
 how to use thing borrowed, 138-141. 
 when liable for fraud, etc., 143-145. 
 when exempt from liability, 147-152, 
 liability after demand, 152. 
 ordinary wear or decay, 153. 
 burden of proof in actions against, 
 
 155-159. 
 duty to return, 161-169, 170-175. 
 incompetency as a party, 126, 127. 
 his interest or special property, 128- 
 
 134. 
 under a precarious loan, 170. 
 not liable for all losses, 172. 
 
670 
 
 INDEX. 
 
 SECTIONS. 
 
 I BouROWEE, his relation to tlie title, 173- 
 1 75. 
 Bkidues, duty in building, 429. 
 
 railway company liable for, 602. 
 BuBDEN OF Pboof, in suits against a de- 
 positary, 58-02. 
 
 in suits against mandatary, 106-110. 
 in suits against borrower, 155-150. 
 showing restitution, 100-169. 
 showing or excusing losses, 171-175. 
 creating pledges, 191-201. 
 relating to mode of making, 209-223. 
 duty in preserving, 234-244. 
 relating to interest of pledgor and 
 
 pledgee, 245-27S. 
 to sale or foreclosure, 279-297. 
 relating to title, 305-308. 
 to remedies, pledges, etc., 312-324. 
 in balements for hire, 399^03. 
 showing retiirn, etc., 40.5-409. 
 relating to bailments for services, 414^ 
 
 419. 
 lien therefor, 420-425. 
 under contracts for personal services, 
 
 433-441. 
 to charge an innkeeper, 455—466, 479. 
 to charge telegraph company, 489. 
 to fix character of common carrier, 
 
 49.5-517. 
 of delivery to carrier, 527. 
 under special contracts by, 5.54-595. 
 to prove special contract, 560, 561. 
 or through contracts, 577, 583, 585. 
 exceptions — delays, SSO-ySi), (i09-614. 
 in actions against carrier, 668-672, 680. 
 of passenger-carrier's negligence, 712, 
 
 716, 721. 
 form of action affects, 62, 155-159, 172. 
 effect of loss by fire, 236. 
 by receipt in bill of lading, 584, 585, 
 
 640. 
 Canal Cakrieiis, who are, 511-514. 
 
 those who are, so engai,'ed, 514. 
 Casal.s, freezing of, an act of God, 537, 
 
 538. 
 excusing delay, .5:!7, 538. 
 Capt()I!s, rights and duties of, .547. 
 
 title of, how perfected, .547. 
 Captube, losses by, 547. 
 Cabe and DILIGK^■(■K, degrees of, 4-9. 
 by a depositary, 43-51. 
 sealed packages, 49. 
 bailee's personal character, .50. 
 under a spontaneous offer, 51. 
 required of a mandatai-y, 78-86. 
 of a borrower, 135-137. 
 when not liable, 147-1.52, 172. 
 required of a pledgee, 234-244. 
 rule stated, 2.34. 
 qualifications of rule, 235-237. 
 treatment of collaterals, 238-244. 
 required of a hirer of chattels, 329, 
 
 370, 384. 
 
 SECnONSk 
 
 Cai!i-. axd Diligence, of a warehoiise- 
 man, 3.;3-349. 
 of a forwarder, 334. 
 of a wharfinger, 356-363. 
 of a lessor of chattels, 373. 
 towards servants, 395. 
 required of bailee for services, 444-446. 
 required of innkeepers, 462-466. 
 of guests, 465. 
 
 of telegraph companies, 487, 493. 
 of common carriers, 532-551. 
 to escape superior force, 541. 
 under special stipulations, 562-570. 
 exceptions of specific perils, 586-589. 
 in the transportation of goods, 596- 
 
 614. 
 in delivery by the carrier, 615-633. 
 in carriage of live stock, 678-687. 
 in receiving passengers, 688, 689, 696, 
 
 697. 
 regulations t c ) secure order and safety, 
 
 689-697. 
 relating to tickets, 700, 703, 729, 730. 
 cannot stipulate against duty, 705. 
 rule of diligence, 707-723. 
 to furnish safe conveyance, 710—713. 
 duties by the way, 714-723, 729. 
 observing law of road, 724—728. 
 usual stopping places, 729. 
 use of tickets, 729, 730. 
 to avoid dangers, 710, 718-720, 723, 
 
 731. 
 of passenger carriers by water, 732, 
 
 735. 
 Caebiaoes, carrier must furnish safe, 601. 
 so must a livery stable keeper, 373, 
 
 374. 
 Careieb's Liex, for reasonable charges, 
 
 645-054. 
 it a specific lien, (>45. 
 when it does not arise, 646. 
 when it attaches, 647. 
 on baggage, 648. 
 detached from part, 649. 
 presei-ved on storing goods, etc., 650. 
 released by contract or delivery, 651. 
 for advances to former carrier, 652. 
 charterer's rights, 653. 
 enforcing or defeating, 654. 
 Cabeiees 11 f Passengebs, duty to re- 
 ceive and carry, 688-698. 
 orderly persons, 689. 
 right and duty to i:)reserve order, 689- 
 
 694. 
 to furnish seats, etc., 695. 
 safety of stations, dej)Ots, platforms, 
 
 696. 
 receiving passengers, 697, 698. 
 payment of fare, 699-701. 
 lien on baggage, 701. 
 how rendered available, 701. 
 contracts to carry, 702-706. 
 essence of, delay, damages, 702. 
 
INDEX. 
 
 671 
 
 SECTION-S. 
 
 liARiiiBBS OF Passengers, through con- 
 tracts, 703. 
 
 lex loci contractus, 704. 
 
 exemptions, 705. 
 
 where no contract, 706. 
 
 general liability of, 707-72:). 
 
 for servants, coaches, cars, etc., 708- 
 710. 
 
 for tracks, road, bridges, 710. 
 
 ground and proof of liability, 711, 712. 
 
 acts of force and wrong, 713. 
 
 fences, cattle guards, 714. 
 
 getting on and off — contributory neg- 
 ligence, 715-723. 
 
 standing on platform, 717. 
 
 leaping from car to escape peril, 719. 
 
 imputable negligence, 720. 
 
 proof of contributory negligence, 721. 
 
 liability to servants, 722. 
 
 on account of servants, 723. 
 
 bad or rash conduct, 723. 
 
 must observe law of road, 724-728. 
 
 duties by the way — refreshments, 729- 
 731. 
 
 stop-over tickets, 729. 
 
 notice of danger — duty after accident, 
 731. 
 
 intoxication — racing, 723. 
 </ABKiEiis OF Passengers by Water ; 
 
 duty of, and imder statute, 732, 733. 
 
 rules of navigation — lights, 734. 
 
 general duty — precautions, 735. 
 
 common law rule of liability, 73G. 
 
 inevitable accidents — collisions, 737. 
 
 failure to comply with statute— lights, 
 738. 
 
 meeting vessels — rules of navigation 
 —origin of, 739-744. 
 
 admiralty rule — collisions, 745, 546. 
 
 common law rule, 746. 
 
 statutory provisions, 747. 
 
 of steam passenger vessels, 748. 
 
 intent and effect of statutes, 749. 
 
 master's duty, etc., 750. 
 <3artmen, when common carriers, 500. 
 ■Casualties, effect of an emergency, 330. 
 
 effect of ■ under special agreements, 
 48. 
 
 inevitable accidents, 147-149, 171. 
 
 losses by fire, 48, 149, 235, 333, 359, 
 360, 543. 
 
 from thieves, 45, 172, 235, 359. 
 
 destruction of things bailed, 375, 409. 
 
 sickness, death, effect of, 438. 
 
 losses by at inns, 463, 478, 467. 
 
 loss by fire in carrier's hands, 23b, 
 543, 604. 
 Cattle ; see Live Stock. 
 Character of Bailee, when material, 
 
 50. 
 Chabtbbeb, when considered owner, 482. 
 Charter-party, contract of, 595. 
 
 enforcement of, 595. 
 
 SECTIONS. 
 
 f'li.vTTEL Moktcjaoes, likeness to 
 pledges, 177. 
 
 likeness and unlikeness to mortgages 
 on lands, 178. 
 
 effect of a chattel mortgage, 179. 
 
 right of possession under, 180. 
 
 mortgagor's right of redemption, 181. 
 
 mortgagee not obliged to foreclose, 
 182. 
 
 mortgage, how extinguished, 183. 
 
 sale under mortgage, 184. 
 
 sale on execution, 263. 
 
 follows debt, as incident, 185. 
 
 difference between it and a pledge, 
 186, 188, 206, 298. 
 
 difference between it and a condi- 
 tional sale, 188. 
 
 a deed and mortgage of lands, 187. 
 Checks, for baggage, effect of, 5'74. 
 
 duty to give, 571. 
 
 checking through, 572. 
 Cheese Factory, character of, 416. 
 Choses i:s^ Action; see Pledges, Pledges 
 
 of Choses in Action, Collateral Se- 
 curities. 
 
 may be pledged, 205, 206. 
 Clean Bill, what is, 596, 612, 588. 
 
 effect of, 588. 
 
 fixing amount, 584, 585. 
 Clergymen and Ministers, contracts 
 
 by, 432. 
 Coachmen, when common carriers, 500, 
 
 504. 
 Coffee House, when an inn, 453, 454. 
 Collateral Securities, mortgages, 
 real and personal, 176-190. 
 
 power to give, 191-201. 
 
 under factors' act, 194,195. 
 
 negotiable paper, 196, 197, 222. 
 
 how to be preserved and used, 238- 
 244, 256. 
 
 rights of the parties to, 245-248. 
 
 holder's rights and remedies, 249- 
 271. 
 
 applying proceeds of, 272-278. 
 
 special interests or rights of prop- 
 erty, 198-201-221. 
 
 pensions or salaries, 203, 204. 
 
 incorporeal things, how used as, 
 205, 406. 
 
 bills of lading used as, 210-215. 
 
 written evidences of title, 214-218. 
 
 shares of stock used as, 219, 283, 
 
 284. 
 choses in action, policies of msur- 
 
 relation of to original debt, 224- 
 233. , „„ 
 
 sale or foreclosure, right of, 27»- 
 282. 
 
 agreements regulating, 283, 288. 
 
 proceedings on sales, 284r-289. 
 
 sales by a factor, 290. 
 
GT2 
 
 INDEX. 
 
 SECTIONS. 
 
 Collateral Securities, who may pur- 
 chase, 291-294, 32.5. 
 when may and when must sell, 29.5- 
 
 297. 
 to be accounted for, 298-311. 
 rights of third parties respected, 
 
 302-307, 310. 
 to secure usurious loan, 227, 308. 
 imlawful detention, 311. 
 remedies by owner, 312-324. 
 right to redeem, 313-315, 317, 318. 
 right of a purchaser, 316. 
 actions when brought, 320-324. 
 Collisions, of ships a sea-peril, 546. 
 rules relating to, 737. 
 at common law, 746. 
 in admiralty, 745. 
 Commissions or Mandates, 74-119, 
 contract and subject of it, 74-76. 
 
 77, 87-91. 
 rule of diligence, 78-86. 
 directors of corporations, 92-95. 
 remedies against bailees, 96-102. 
 by bailor or bailee, 102-105. 
 burden of proof, 106-110. 
 termination of the bailment, 113- 
 
 119. 
 CoMMODATUM, Or gratuitous loan, 3, 
 
 120-175. 
 a loan for use, 123-127. 
 borrower's interest, 128, 120. 
 lender's interest, 131-134. 
 Common Caekieks, who are and how 
 
 the character is assumed, 495-499. 
 cartmen, draymen, porters, 500. 
 wagoners, old customs, 501. 
 stage coaches, 502, 503. 
 hackmen and cabmen, 504. 
 baggage express companies, 500. 
 ferrymen when chargeable as, 505- 
 
 507. 
 masters of vessels, 508-510. 
 owners navigating vessels, 511- 
 
 514. 
 railroads as carriers, 515. 
 express companies, 516. 
 special agreements to carry, 517. 
 duty to receice and carry, 518-522. 
 on equal terms, 518-520. 
 cannot impose their own terms, 521, 
 
 553. 
 rights in receiving, 522. 
 delivery to the carrier, 523-531. 
 usages affecting, 524-52(!. 
 when carrier becomes liable, 528. 
 good faith in making, 529, 530. 
 dangerous goods, 531. 
 rule of respoiiKibility, 532-536. 
 acts of God, exceptions, .537-546. 
 losses by the public enemy, 547-551. 
 liable as insurers, 549-551. 
 implied duties and stipulations, 
 
 550, 551. 
 
 SECTIONS, 
 
 Common Carriers, special contracts by, 
 
 552-595. 
 history and effect of public notices, 
 
 5.54-560. 
 under statutes, English and Ameri- 
 can, 555-560. 
 receipts embodying contracts, 561. 
 freedom of contracts, 562-565. 
 general words of exemption, 566- 
 
 563. 
 mode of receiving and receipting 
 
 goods, 567-569. 
 receiving and checking baggage, 
 
 570-575. 
 through contracts, 572-585. 
 effect of New York statute, 573. 
 tickets, checks, evidence, 574. 
 through contract, when implied, 
 
 577-585. 
 agent, son, servant, 576. 
 through contracts, English rule, 
 
 578, 583. 
 through lines, 579. 
 
 address on goods, effect of, 580-58;'. 
 verbal and written contracts, 584. 
 bill of lading, receipt in, 584, 585, 
 
 590. 
 exceptions, perils of seas, rivers. 
 
 lakes, 586, 5S7. 
 clean bill of lading, 588. 
 office of bill, stipulations in, 590-594. 
 charter-party, how enforced, 595. 
 carrifij/e of r/ouds, 596-614. 
 duty in stowing goods, 596. 
 mode of carrying, leakage and break- 
 age, 597. 
 to preserve injured goods, 598. 
 decay, delays, bad packing, etc., 5'.»s. 
 
 599. 
 reshipping or transshipping, 600. 
 duties by tlie way, 601-605. 
 ships, coaches, roads, bridges, etc., 
 
 601, 604. 
 thefts, robbery, barratry, insurance, 
 
 605. 
 employment of other carriers, 606. 
 under special agreements, 607-609. 
 damages, loss, delay, etc., 610, 611. 
 jettison, must contribute for, 612. 
 wrong or fraud by third parties, 613, 
 
 614. 
 insurance by carrier, 613. 
 actions by carrier, 614. 
 dplirery by carriers, 61.5-633. 
 under different situations, 615-623. 
 by coach or express carriers, 618. 
 by water carriers, 619-623. 
 by railway carriers, 624-628. 
 to party holding title, 629. 
 when goods are stopped, 630-632. 
 carrier's hire or reward, 634-644. 
 carrler''s lien, 645-654. 
 remedies against, 655-677. 
 
INDEX 
 
 6T3 
 
 SKCmOKS. 
 
 Common Cabriers, parties to action, 
 665-667. 
 burden of proof, 668-672. 
 damages, 678-677. 
 carriage of live stock, 678-687. 
 defenses by, 687. 
 througli Blue line, 687. 
 perishable property, 597-599. 
 losses from nature of property, 679- 
 686. 
 CoMPLAiifT, against a carrier, 655-664. 
 on special contracts, 663, 664, 586. 
 exceptions, treatment of, 586. 
 Concealment, on delivery to carrier, 
 530, 531. 
 effect of public notices, 554, 55."). 
 under statutes, 55.5-560. 
 fraud and imposition on carrier 565, 
 
 569. 
 by bailor letting horses, 37:1 
 when fraud in law, 565, 569. 
 by paying as for an ordinary parcel, 
 
 565, 567, 570. 
 duty to disclose ? 568. 
 Confusion, pledgee to prevent, 271. 
 
 his duty towards different parties, 
 192, 272-274. 
 Consideration, in a contract of deposit, 
 24. 
 of mandate, 74, 77, 88, 87, 89. 
 Consideration, under a loan, 123, 130- 
 134, 140. 
 in a pledge, 176, 189, 190. 
 Consignee, delivery to, when not found, 
 623. 
 must pay freight, etc., when, 592, 593. 
 packages marked C. O. D. 623. 
 action by, being the owner, 666. 
 Consignment, to meet advances, 591. 
 Consignor and Consignee, with whom 
 is the carrier's contract, 66.5-667. 
 with the owner, 665-667.* 
 Contract, power to make, how revoked, 
 114-119. 
 when completed by letter, 118. 
 by depositary, 10; by mandatary, 87- 
 
 90. 
 by skilled workmen, 426-432. 
 carrier's right under, 614. 
 
 CONTRIBtTTOET NEGLIGENCE, by a gUCSt 
 
 at an inn, 465. 
 by passenger, burden of proof, 712, 
 
 716, 721. 
 by infants, 720. 
 standing on platform, 717. 
 alighting from car, 715, .718, 719. 
 getting on a moving train, 718. 
 getting off under advice, 719. 
 to escape danger, 719. 
 in suit against a negligent third party, 
 
 720. 
 burden of proving, 721-72.3. 
 CoNVBESioN, by a depositary, 42, 58-64. 
 
 SECTIONS. 
 
 Conversion, bailee liable after, 60, 61, 
 152. 
 waiver of, 42. 
 by sale of goods, 70-73. 
 by a mandatary, 96-10.5. 
 burden of proof of, 106-109. 
 by sale or misappropriation, 257, 266- 
 
 271. 
 of bonds and notes, 270, 305, 306, 309. 
 by a refusal to return, 353. 
 under illegal contracts, 377-379. 
 by misusing hired goods, etc., 381- 
 
 383. 
 by a misdelivery, 406. 
 effect of return after, 407. 
 Corporations, acting as mandataries, 91. 
 directors and managers of, 92-95. 
 as carriers, 515, 519. 
 Countermand of authority, 58, 170. 
 allowed when, 58, 134, 170. 
 and when not, 100. 
 of license to use, 377, 378. 
 Counselor, right to recover for ser- 
 vices, 431. 
 liable for want of skill, 430. 
 ' barrister, English rule, 430, 481. 
 Creditors, rights as against assignee, 
 7, 294. 
 several interested in a pledge, 273, 
 
 274, 295. 
 right to sell goods under pledge, 259- 
 
 262. 
 under statute law, 287. 
 may pledgee's interest be levied on, 
 
 263, 264. 
 rights of creditors of pledgor, 316. 
 or factor, 316. 
 
 sales under a del credere commission 
 note, 278, 367. 
 Custody, sheriff may leave goods with a 
 receiptor, 2S, 34. 
 of a servant or agent, 70, 72. 
 restoring, by borrower, 161-165. 
 differs from possession, 269, 270. 
 delivery to innkeeper's, 459, 400. 
 delivery to carrier's, 526. 
 Custom, warehouseman may advance un- 
 der, 351. 
 carrier may, 607, 642, 643, 652. 
 effect of on contracts, 588. 
 affecting delivery to carrier, 524-527. 
 delivery by carrier, 620, 626. 
 to explain bill of lading, 588. 
 when not allowed, 238. 
 Damages, general rule of, 112, 677. 
 
 in actions against carriers, 608-610, 
 
 673. 
 caused by delay, 608-611, 677. 
 proof of damages, 611. 
 when deducted from freight, 640. 
 rule of against carrier, 673-677. 
 when goods are injured, 674. 
 under executory contracts, 676. 
 
 43 
 
674 
 
 INDEX. 
 
 SECTIONS. 
 
 Dama(;es, under special agreements, 598. 
 duty to limit, 598, 599. 
 for delay of passenger, 702. 
 Danijerous Goods, delivery of to carrier, 
 
 duty in making, 531. 
 D.VNGBKS OF NAviGATioisr, wliat SO Con- 
 sidered, 587. 
 liow construed as an exception, 586, 
 
 587. 
 in policies of insurance, 589. 
 fSee Navigation. 
 Dangers of the Skas, Rivers, Lakes, 
 586-589. 
 exceptions of in bill of lading, how 
 
 treated in jjleading, 586. 
 scope and effect of, 586, 587. 
 in policies of insurance, 589. 
 fire not included in, 586. 
 duty on happening of loss by, 598. 
 when contribution for, 612. 
 collisions from, 737, 745, 746. 
 loss by covered by statute, 559. 
 exceptions of in receipt, 561. 
 Di'..VTir, effect of death of bailee, 114-116. 
 of bailor, 117. 
 
 effect of on contract of pledge, 265. 
 DioATii, causing death or injury to pas- 
 sengers, 695, 747. 
 bearing of lex loci on, 704. 
 Debts, Usueioijs, effect of giving securi- 
 ties for payment of, 225-228. 
 pledge of valid securities on, 308. 
 Debts, Illegal, pledges to secure, 225, 
 227. 
 given on void contracts, 228. 
 Deck Goods, relation of to cargo, 588, 
 O'.Ki. 
 when to contribute, 58S, 596. 
 Declaration' ok Complain"!, against 
 carrier, 655-664. 
 on special contracts, 586, 663, 664. 
 exceptions in contract, 586. 
 Dior,.AY, by common carrier, 598, 599, 608- 
 611, 677. 
 of passengers, 702. 
 Del Credere, sales under, 367. 
 
 effect of sales, note, 27s. 
 Delivery, to rightful owner, effect of, 
 54, 57. 
 to a stranger, effect of, 58, 59, 348. 
 effect of a misdelivery, 72, 99, 162, 
 
 406. 
 to keep at a price or return, 85. 
 to be returned in kind, 120, 121. 
 on a condition, sale or return, 85. 
 involved in all the definitions, 1, 10, 
 
 74. 
 on a loan for use, 123-125. 
 of things as a security, 17(i, 177. 
 by an infant, 189. 
 by transfers, 19.3, 211, 219, 220. 
 of negotiable securities, 222, 196, 197, 
 306. 
 
 SECTIONS. 
 
 Delivery, of goods in bond, 216, 217. 
 
 by bailee for special purpose, 270. 
 
 for labor and services, 410, 44.3. 
 
 to an innkeeper, 459-461, 467, 478. 
 
 of mail matter, 483-485. 
 
 of telegraphic messages, 486-494. 
 
 to common carrier, 528-531. 
 
 of money with baggage, 529. 
 
 failure in making, 605. 
 
 by the carrier, 615. 
 
 imder through contract, 616. 
 
 to connecting line, 617. 
 
 by land carriers, coach or express, 618. 
 
 mutual acts in, 619. 
 
 notice of landing, etc., 620. 
 
 place and duty of, 621, 622. 
 
 consignee not found — C. O. D., 623. 
 
 ship and railway carriers, 624. 
 
 notice of arrival, 025, 626. 
 
 time and proof of, 627, 628. 
 
 to party holding title, 629. 
 
 stoppage in transitu, 631, 633. 
 
 See various titles — I3aggage, Freight, 
 Lien, Consignee. 
 Demand and Refusal, effect of, 58-64. 
 
 consequences of, 59-63. 
 
 as evidence of a conversion, 42. 
 
 waiver of a conversion, 42. 
 
 taking back after is not, 407. 
 
 of goods by a third party, 70-73. 
 
 having right or title, 100. 
 
 when not necessary, 97-100. 
 
 action to suit the case, 101-105. 
 
 proof (li'pends on action, 106-109. 
 
 not required to prove conversion, 
 when, 257, 267-271. 
 
 misappropriation, 305, 306, 881-383. 
 
 party coming into rights of pledgor, 
 316. 
 
 bailor's right to demand, 353, 377- 
 379. 
 
 when geods are deliverable on de- 
 mand, 408. 
 
 after bailor's title terminates, 409. 
 Depositary; see Deposits, § 10-73. 
 
 liability of, 43-51. 
 
 imder a special agreement, 48. 
 
 of money in litigation, 12. 
 
 duty to redeliver, 54-58. 
 
 remedies against, 59-73. 
 
 should not gain or lose, 65, 66, 67, 68. 
 
 duty to keep, 69. 
 
 must restore to owner, 70, 71-73. 
 
 special property, 36-39. 
 
 duties under civil law, 57. 
 
 misconduct under common law, 58. 
 
 effect of a demand, 50. 
 
 consequences of a conversion, 60, 
 61. 
 
 presumption against, 62. 
 
 cannot resist true owner, 6:!. 
 
 right to use, 65. 
 
 special expenses by, (i8. 
 
INDEX. 
 
 675 
 
 SECTIONS. 
 
 Depositaky, cannot pledge and must re- 
 deliver, 09, 72. 
 duty to true owner, 70, 73. 
 Deposits, contracts of, 10-73. 
 is there a contract ? 10. 
 subject matter of the contract, 11. 
 money in court, to await a judgment 
 
 or decision, 12. 
 parties to the contract, 13-17. 
 married "women as parties, 13. 
 incompetent parties — infants, 14. 
 persons of unsound mind, 15. 
 intoxicated persons, 16, 17. 
 finders of goods, etc., 18-21. 
 in a bank, 41, 45. 
 rule of liability, 43-51. 
 under a special engagement, 48. 
 on spontaneous offer, 50, 51. 
 redelivery by bailee, 54-58. 
 remedies for refusal, 59-73. 
 right to use, 65. 
 Dbpositum, definition of, 3. 
 
 liability under, 6. 
 DESTBtrcTioN, of things bailed, effect of 
 on a bailment, 375, 409. 
 by a casual Are, 48, 149, 235, 236, 333, 
 
 359, 360, 543, 604. 
 at an inn, 463, 467, 478. 
 DETEEMEsrATiQjsr, of contract of bailment, 
 114-119. 
 of contracts of pledge, 298-305. 
 of contracts of hire, 375, 494-409. 
 by infants, 378. 
 Deviation, from contract, when excused, 
 439, 440, 442. 
 when not excused, 447. 
 from course of voyage, 539. 
 from instructions, 540, 597, 580. 
 from published rules by R. R., 729. 
 Diligence, kinds or degrees of, 4-9. 
 by a depositary, 43-51. 
 sealed packages, 49. 
 individual character, 50. 
 under a spontaneous offer, 51. 
 See Care and Diligence. 
 Discriminations in Febight, allowed, 
 519, 520. 
 and disallowed, 519, 520. 
 DisOBDEBLY PERSONS, how treated as 
 passengers, 688-694. 
 need not be received, 689, 690. 
 or at an inn, 471. 
 Dispatch, in carrying goods, 608. 
 
 under contract, 608, 609. 
 Enemies, who are public enemies, 547. 
 and who not so regarded, 547. 
 ground of rule, 547, 548. 
 Equal anb Impartial Terms; carriers 
 
 must act on, 519, 520. 
 Equipment, of railroads and other car- 
 riers, 601, 602. 
 construction of road, bridges, etc., 
 
 602. 
 
 SECTIONS. 
 
 Equity, when synonymous with justice, 
 
 note 9. 
 Estoppel, doctrine of, 29, 30. 
 
 bailee estopped from disputing the 
 
 title of the bailor, 73, 173. 
 bailor, when estopped, 191, 192. 
 as between receiptor and sheriff, 9, 
 
 320. 
 EsTEAYS, compensation for keeping, 20. 
 EviDENCK, of contracting capacity, 14-17. 
 to prove larceny by finder, 21. 
 in action against depositary, 62. 
 against mandatary, 96-101, 106-110. 
 against borrower, 155-159. 
 as to place and mode of return, 160- 
 
 169. 
 respecting restitution of pledges, 298- 
 
 307. 
 remedies given for, 312-324. 
 to show character of bailee for hire, 
 
 .334-337. 
 carrier at depots, 334r-340. j 
 of warehousemen' s right to advance 
 
 freight, 351. 
 receipts of grain in store, on freight 
 
 etc., 352. 
 onus of proof, 354. 
 when changed, 399-402. 
 to establish character of carrier, 496, 
 
 517. 
 by carrying parcels, 503. 
 character of ferryman, 506. 
 owners of vessels, 512. 
 of delivery to carrier, 523-531. 
 of special contracts by carrier, 552- 
 
 595. 
 by published notices, 554-560. 
 imder statutes, 555-559, .573. 
 of contract, by checks, tickets, notices, 
 
 560, 574. 
 receipt embodying contract, 561, 585- 
 
 595. 
 specifying amount of goods, 584, 585. 
 actual notice, 569. 
 delivery of baggage to earner, 529, 
 
 530, 570-575. 
 of exemptions, 562-569. 
 from sea perils, etc., 586-589. 
 of through contracts, 573, 577-585. 
 against insurer, 589. 
 clean bill of lading, 588. 
 effect of bill on freight, demurrage, 
 
 etc., 590-595. 
 stowage, leakage, breakage, etc., 59b, 
 
 597 
 decay, delay, packing, transshipping, 
 
 598-600, 60S, 611. 
 ships, cars, roads, bridges, 601-604. 
 carrier's liability for losses, 602-6U. 
 contract governs, 614. _ 
 
 relating to delivery by carrier, bio- 
 
 633. 
 to carrier's hire, 634-644. 
 
676 
 
 INDEX. 
 
 SECTIONS, 
 
 Evidence, tocaixier's lipn, 645-054. 
 
 in actions against carrier, O.")")-*!??. 
 Exceptions, in bills of lading, <'tc., 604, 
 5SlV5y!t. 
 absence of, liability of carrier for losses 
 
 by theft, fraud, or violence, 005. 
 by special coutracis, .■j52-."j61). 
 Execution, pledges not liable to at com- 
 mon law, 259. 
 how far liable under statutes, 259-263. 
 executions against bailees, 263, 264. 
 against mortgagor of goods, 263. 
 
 EXECUTOKS AND ADMINSTKATORS, 114- 
 
 119, 251, 279. 
 
 undercoHtractsof pledge,298, 313, 321. 
 
 effect of death of pledgor or pledgee, 
 251, 265. 
 EXECUTOKY CONTK.iCTS, of pledge, IDS, 
 199, 200. 
 
 of pensions, or salaries, not due, 203, 
 204. 
 
 of goods to be made to onler, 410-413, 
 414. 
 
 to make on shares, 416-418. 
 
 when title passes, 447. 
 Exemptions from Li.vbii.ity, stipula- 
 tions for by common carrier, 552-560. 
 
 freedom of contract, 5(U-5B9. 
 
 from specified perils, 5S(i-589. 
 ExPEKTS, liability of when acting gra- 
 tuitously, 77. 
 
 skill required of in their calling, 426- 
 432. 
 
 in a bailment for services, 444, 445. 
 Expenses, by whom borne, owner, 20. 
 
 of saving from sea perils, 23. 
 
 to protect property, 66. 
 
 borrower to pay ordinary, 142. 
 
 what to be paid by pledgor, 299. 
 
 what to be paid by hirer, 385. 
 
 by an exempt carrier, 598. 
 
 as an element of damages, 702. 
 
 of collection by pledgee, 241, 242, 299. 
 
 to preserve chattels, 330. 
 
 by common carrier, 598. 
 ExPKESS Cakrieiis, effect of their con- 
 tract, 606. 
 
 right to sue actual carrier, 606. 
 
 limit of recovery in action, 606. 
 
 special trusts assumed by, (107, 623. 
 
 express companies common carriers, 
 516. 
 
 of parcels, contracts by, 55.5-574. 
 
 See Negotiable Paper, and Money. 
 Factors, pledge of goods by, 194, 195, 
 209-218. 
 
 power to pledge, 194-196. 
 
 mode of pledging, 209-218. 
 
 when like pledgees, 275-278. 
 
 right to sell, 290. 
 
 nature and extent of lien, 365—368. 
 
 in possession of bill of lading, 629, 
 590, 591. 
 
 SECTIONS, 
 
 Feasance and Non-Feasance, and mis- 
 f pfm3.n.0(* '7'7 
 
 liability of 'experts, note, 77, 427-432. 
 Femes Covert, incapacity at common 
 
 law, 13, 127, 190. 
 
 powers under statutes, 127, 190. 
 Ferrymen, how far common carriers, 505,- 
 507. 
 
 specific duties of, 507. 
 Finder, not obliged to take up goods, etc., 
 18. 
 
 his liability for care of, 18. 
 
 his special property,' 19. 
 
 right to compensation for his ser- 
 vices, 20. 
 
 when guilty of larceny, 21. 
 
 estrays and wrecks, 19, 22. 
 
 aiding to save a distressed ship — sal- 
 vage, 23. 
 Fire ; losses by fire, by whom borne, 4s, 
 149. 
 
 borrower not liable for, 149. 
 
 pledgee not liable, 235, 236. 
 
 no presumption of negligence from a 
 loss by, 236. 
 
 a bailee for hire not liable for, 333, 
 359, 360. 
 
 when carrier liable for, 543, 617. 
 
 losses of baggage by, 571. 
 
 effect of exemption from by stipula- 
 tion, 705. 
 
 general rule, 23(5, 543, 604. 
 
 losses by fire at an inn, 463, 467, 478. 
 
 carrier's exemption by statute, 543, 
 617. 
 Force Irresistible, when an act of God, 
 532-548. 
 
 natural forces, 5:!7, 542, 544. 
 
 when it is no excuse, 538-541. 
 
 enemies armed with, 547, 548. 
 
 losses from, effect of, 148-151, 171. 
 
 robbery or theft, 45, 235, 237, 359. 
 
 casual injury by force, 330. 
 
 injury by to warehouse, 344, 345. 
 
 effect of, destroying the goods bailed, 
 
 409, 443. 
 Foreclosure, or S.\.le, of pledges, 279- 
 297. 
 
 modes of, 279, 280, 297, 317. 
 
 preliminary steps, 281-286. 
 
 statutes relating to, 287. 
 
 under special relations, 288, 289. 
 
 factor's right to sell, 2iX). 
 
 who may purchase, 291, 292. 
 
 choses in action, 293. 
 
 imder a mortgage of a mortgage, 294, 
 324. 
 
 where a pledge covers several debts, 295. 
 
 pledgee may, but is not bound to sell, 
 296. 
 
 may foreclose in equity, 297, 313, 701. 
 
 of a lien for keeping cattle and horses, 
 331. 
 
INDEX. 
 
 677 
 
 SECTIONS. 
 
 I'OBFEITTJBE, of title Under a chattel 
 mortgage, 179-182. 
 mortgagor's right to redeem, 181, 313. 
 legal title In mortgagee, 182. 
 payment after forfeiture, 183. 
 legal title in pledgor, 186. 
 a deed when a mortgage, 187. 
 effect of keeping the property, 301. 
 cannot be stipulated for, 298, 249,- 
 
 250. 
 may agree upon a sale of a pledge, 283. 
 Former Judgment, effect of, 103, 104. 
 in favor of owner, 103, 
 
 104. 
 in favor of bailee, 104. 
 In favor of a carrier, 614. 
 Forwarder, liability of, 335. 
 mode of doing business, 335. 
 express companies more than, 516. 
 contracts to forward, 363. 
 Fraud or Bad Faith, depositary liable 
 for, 45-47. 
 in procuring loan, 143-145. 
 when lender liable for, 146. 
 in use of effects, by pledging, 192, 193. 
 by factors pledging goods, 194, 195. 
 in the use of negotiable paper, 196, 
 
 197, 306, 305, 222. 
 in preserving pledge, etc., 138-244. 
 wrongfully appropriating pledge, 2.54r- 
 
 258. 
 appropriation by bailee, 319, 301. 
 toward bailor, by bailee, 348. 
 in lessor of chattels, 373, 374. 
 Tay an infant bailee, 378. 
 in use of chattels, 402. 
 in sending telegraphic messages, 493. 
 in delivering goods to carrier, 529-531. 
 in delivering parcels, 564-567. 
 concealment of value, 565-568. 
 of goods as baggage, 565, 567, 529, 530. 
 in delivery to ship carriers, 558. 
 of third parties, liability for, 613. 
 insurance against, 605, 613. 
 in procuring bill of lading, 210, 211. 
 in the use of the bill, 212-215. 
 by the use of evidences of title, 215- 
 
 220. 
 fraud in law, 529, 530, 565. 
 Fbaub IX Law, a silent concealment of 
 the value of goods delivered to a 
 common carrier, 529, 530, 565. 
 carrier's duty to inquire value ? 567, 
 
 Freight, carrier's hire or reward, 634- 
 644. 
 
 contracts for, 634, 592. 
 
 when it becomes due, 635. 
 
 under bill of lading, 592, 636. 
 
 purchaser when liable for, 636. 
 
 when voyage is arrested or goods re- 
 landed, 637, 638. 
 
 when paid in advance, 639. 
 
 SECTIONS. 
 
 Freight, when losses to be deducted 
 
 from, 640. 
 insurance on, 641. 
 to be paid on delivery, 633, 642. 
 from whom collectible, 643. 
 when one carrier is substituted for 
 
 another, 644. 
 discriminations on freight, 519, 520. 
 right of a carrier to pay freight earned 
 
 and collect whole amount on de- 
 livery of goods, 607, 652, 642, 643. 
 warehouseman may advance, 351. 
 Garnishment and Interpleader, 55. 
 
 allegations in bill of, 55. 
 General Liens, what parties have, 350, 
 
 364-368. 
 not favored, 364-368. 
 bailee's property and lien, 420-424, 
 
 447. 
 innkeeper's lien, 473, 476. 
 boarding-house keeper's lien, 477, 478. 
 carrier's lien, 645-654. 
 carrier's lien on baggage, 701. 
 lien of a mortgagee of lands, 178, 187. 
 effect of pledgee's lien, 259-262. 
 sale of goods held under, 268, 269. 
 foreclosure of pledgee's lien, 279- 
 
 297. 
 General Ship, eilect of advertising as, 
 
 482. 
 when a vessel is not, 512. 
 Gratuitous Bailees, liable for what 
 
 care, 6. 
 depositaries, 43-51. 
 mandataries, 78-86. 
 a collecting agent, ill. 320. 
 Gratuitous Loans, when a sale and 
 
 when a bailment, 120, 121. 
 loan for use, 123. 
 of negotiable paper, 122. 
 when a loan not gratuitous, 124. 
 terms of loan like a license, 123, 125. 
 parties to the bailment, 126, 127. 
 borrower's interest, 128, 129. 
 lender's interest, 131, 132. 
 vmder an indefinite loan, 133. 
 right to countermand, 134. 
 degree of diligence required and skill, 
 
 135-137. 
 bow loan to be used, 138-141. 
 expenses under, by whom borne, 142. 
 fraud in procuring, effect of, 143-145. 
 when lender liable for defects, 146. 
 borrower, when exempt from liability, 
 
 147-149. 
 depends on general rule, 150, 151. 
 liable after demand, 152. _^^ 
 ordinary wear or decay, 153. 
 valued loans, 154. 
 
 in actions, burden of proof, 155-159. 
 implied agreement to restore, 160. 
 mode, time and place of return, 161- 
 168. 
 
678 
 
 • INDEX. 
 
 SECTIONS. 
 
 Gratuitous Loans, under a joint bail- 
 ment, 169. 
 under a precarious loan, 170. 
 borrower not liable for loss, wben, 
 
 171, 172. 
 cannot set up title, 173. 
 conversion, title, 174. 
 statute of limitations, 175. 
 Gkoss Negligence, recognized, 4-7. 
 depositary liable for, 43-51. 
 not the same as fraud, 47. 
 in a mandatary, 78-84. 
 in directors of a corporation, 92-94. 
 in a borrower of goods, 185, 136, 161, 
 
 171. 
 in a pledgee, 234, 235, 240. 
 in failure to collect, 320. 
 stipulations for exemption from, 554, 
 
 556, 557, 561-568. 
 negligence in carrying passengers, 
 
 711-721. 
 by water, 735-749. 
 Guardian, rights of, 57, 104, 105, 114- 
 117, 119. 
 effect of good faith in bailee, 70-73. 
 rights of, depend on title, 119. 
 contracts for passage by agent, son, 
 or servant, 576. 
 Guests, at an inn, who are, 455-458. 
 innkeeper's duty to receive, 471, 472, 
 rights of, for losses, 459-470. 
 liability of, for reasonable charges, 
 
 473^78. 
 rights of action by, 472, 479. 
 Hackney Coachman, when a common 
 carrier, 504. 
 or a passenger carrier, 504. 
 Hire, Bailments roi:, 3, 325-449. 
 
 baihnents for labor and services, 410- 
 
 425, 443-449. 
 of custody, contract for, 327-331. 
 of storage, warehousemen, 332-354. 
 wharves and piers, 355. 
 contracts of, by wharfingers, 356-368. 
 ' of things for use, 369^09. 
 special property under, 371, 372. 
 duty of lessor under contract, 378, 874. 
 after the things perish, 375, 409. 
 of use where there is no bailment, 876. 
 under illegal bailments, Sunday con- 
 tracts, 377'. 
 under invalid contracts, infants, 378. 
 hirer' s contract, scope of, 379-383. 
 care and diligence required, 384. 
 expenses by whom borne, 385. 
 actions and remedies, 386-888. 
 burden of proof, 399-402. 
 liability In respect to servants, 889- 
 
 398. 
 accession, income or increase, 403. 
 termination of contract, 404. 
 duty and incidents of return, 405-409. 
 losses, by whom borne, 425. 
 
 sbctions, 
 Hire — Of Labor and Services Gene- 
 rally, 426-442. 
 skill required of professional men, 
 
 426-432. 
 of personal services, nature of contract, 
 
 433-438. 
 delays, excuses, etc., 439, 440. 
 voluntary services, 441. 
 care, skill, diligence, 443-446. 
 bailee must fulfill, 447. 
 his demand and lien, 448. 
 mechanic's lien, 449. 
 Hire — Contracts of, 1-9, 10-12. 
 by a mandataiy, 91. 
 by a director in a corporation, 92-95. 
 where things are to be returned in. 
 
 kind, 120, 121. 
 loans for keep, 137 a. 
 valued loans, 154. 
 
 involving various bailments, 325-331. 
 for use or manufacture, 325. 
 for safe-keeping, 327, 328. 
 to pasture or to keep, 329-381. 
 Warehousemen, 332-855. 
 by a forwarder, 335. 
 in a double capacity, 336-889. 
 custom may indicate capacity, 338— 
 
 341. 
 or show right to advance freight, 
 
 351. 
 or to interpret receipt, 352. 
 when warehouseman's duties begin. 
 
 and end, 342-354. 
 duties in building, .344, 345. 
 Wharfingers, 356-868. 
 liability of, 356-360. 
 for their servants, 361. 
 under contracts to forward, 352, 363. 
 Hire of Things, '369-388, 399-403. 
 rights of parties under contract, 370— 
 
 380. 
 hirer limited to use agreed for, 381— 
 
 383. 
 care and diligence required, 384-388. 
 liability in respect of servants, 389- 
 
 898. 
 evidence in suits against, 399-i03. 
 rights of hirer under contract, 403. 
 termination of contract, 404-409. 
 Labor and Services, 410-425, 44S- 
 
 449. 
 contracts to make or to sell, 411-413. 
 on shares — cheese factory, 416, 447. 
 title under bailments for services, 
 
 414-419. 
 sales or leases of live stock. 41 T). 
 bailee's property and lieu, 420-424, 
 
 448. 
 losses — insurance, 42."). 
 care and skill required, 443-446. 
 Special akd Quasi-Carriees, 480- 
 
 494. 
 towing boats, etc., 480, 562, 563. 
 
INDEX. 
 
 679 
 
 SECTIONS. 
 
 HiBE — Special and Quasi-Cakuibbs, 
 affreightment, 481. 
 post-oflSce department, 483-485. 
 telegraph companies, 486-494. 
 Hike, Contracts of, fob Skkvicbs, 
 426-440. 
 under a general retainer, 426. 
 or an agreement for compensation by 
 
 will, 441. 
 by physicians and surgeons, 77, 427, 
 
 428. 
 by engineers and architects, 429. 
 by attorney or counsel, 430, 431. 
 by ministers and clergymen, 432. 
 contracts for personal services, 433, 
 
 434, 435. 
 damages for breach of, 435, 440. 
 contracts of, by infant or aiiprentice, 
 
 436. 
 agreements for a term, 437. 
 sickness or deatli, 43S. 
 delays by employer, 439. 
 voluntary services, 441. 
 agreement for board not implied, 441. 
 for so many days or months, 437. 
 defenses under, 437-440. 
 action on a quantum meruit, 438-440, 
 
 443. 
 contracts to manufacture, 442. 
 Hike of Cabkiagb, by common carriers, 
 495. 
 ■who are common carriers, 495-517. 
 duty of carrier to receive, 518-522. 
 delivery to the carrier, 523-531. 
 rule of responsibility, 532-551. 
 special contracts, 552-595. 
 carriage of goods, 596-614. 
 delivery by the carrier, 615-633. 
 carrier's hire or reward, 634-644. 
 carrier's lien, 645-(;54. _ „^, „„„ 
 remedies against the carrier, 655-677. 
 carriage of live stock, 678-687. 
 HiBB of Cabeiagb of Passkngebs, 688- 
 750. 
 duty to receive and carry, 688-698. 
 how far qualified, 689-697. 
 reasonable regulations, 689-694. 
 duty to furnish accommodations, 695. 
 colored people, 695. 
 to presei-ve order, 690-694. 
 to protect passengers, 691. 
 conduct of passenger, 691. 
 enforcement of rules of order, 692-694. 
 stations, depots, platforms, 696. 
 receiving passengers, 697. 
 persons lawfully on board, 698. 
 Payment of Faeb, 699-701. 
 right and mode of enforcmg, 700, 701. 
 CONTBACT, 702-706. 
 essence of and mode of makmg, 70/. 
 through contracts— coupon tickets, 
 
 703. 
 lex loci contractus, 704. 
 
 SECTIONS. 
 
 HiBE OP Cabkiage of Passengeiis — 
 Contbact, exemptions, 705. 
 
 where there is no contract, 706. 
 
 or an illegal contract, 706. 
 
 Gbnekal Liability, 707-731. 
 
 application of general rule, 707-710. 
 
 ground of rule, 711, 712. 
 
 with reference to dangers, 713, 714. 
 
 getting on and off, 715-719. 
 
 under advice, 719. 
 
 standing on platform, 717, 695. 
 
 criminal acts of strangers, 713. 
 
 action against negligent third party, 
 720. 
 
 liift)le for acts of servants, 722, 723. 
 
 duty to observe law of road, 724-728. 
 
 carrier's duties by the way, 729-731. 
 
 respecting tickets, 729, 730. 
 
 duty after accident, 731. 
 
 Passengbb Cabbiebs by Wateb, 
 732-750. 
 
 under State statutes, 733. 
 
 rules of navigation — lights, 734, 735, 
 738-740. 
 
 origin of rules — Trinity House, 741. 
 
 meeting of vessels, 739-744. 
 
 admiralty rule — collisions, 745. 
 
 common law rule, 746, 546. 
 
 statutory provisions, 747, 749. 
 
 of steam passenger vessels, 748. 
 
 master's duty and authority, 750. 
 HiBKB, duties of, in emergency, 330. 
 
 hirer for use, of deposit, etc., 325, 327. 
 
 of custody and storage, 328-354. 
 
 of things for use, 369-409. 
 
 interest or property in, 369-372. 
 
 lessor's duty under contract, 373-375. 
 
 where the property is destroyed, 375. 
 
 where there is no bailment, hiring car- 
 riage and horses, with driver, 376. 
 
 under illegal or invalid contracts, 377, 
 378. 
 
 bound by the terms of the contract, 
 379-383. 
 
 duty of care and diligence, 384; ex- 
 penses, 385. 
 
 right to recover, 386; hire or sale, 387. 
 
 under a joint bailment, 388. 
 
 liability in respect of servants, 389- 
 398. 
 
 burden of proof in suits, on whom, 
 399-^02. . 
 
 increase of cattle— accession, 403. 
 
 duty to restore chattels, 404^409. 
 Hotels, synonymous with inns, 453. 
 
 See Inii, Innkeepers, 450-479. 
 HoYMEN, when common carriers, 499, 544. 
 Ice, stoppage by, considered act of trOd, 
 537-545. 
 on the lakes and rivers, 537-542. 
 canals and harbors, .537-539. 
 does not dissolve contracts, 537. 
 delays by snow and frost, 537, 53b. 
 
680 
 
 INDEX. 
 
 SECTIONS. 
 
 Illegal Contracts, notenforciblo, '2'Z4- 
 
 22',). 
 pledges to secure iierformauci' of, 224- 
 
 229. 
 usurioTis contracts, 227, yos. 
 pledges to secure, void contracts, 228. 
 because made on Sunday, :!77, ")'>o. 
 for tavern bills, 452. 
 pledging salaries or pensions, 2o:5, 204. 
 stipulating for a penalty, 3H(3, 187, 2.)0, 
 
 2S2, 298. 
 exemptions stipulated for by carrier, 
 
 552-560, 5(j:!, 5(;(i. 
 of passengers, 693, 705. , 
 
 violations of statutes, 714, 717, 738, 
 
 749. 
 illegal preferences by carriers, 51S-522. 
 lMrLii;D CoNTitACT.'i, nature and ground 
 
 of, 10, 74, 77, .S7-91. 
 under a pledge, 176, 279. 
 of a factor in possession, 290. 
 to preserve property, 230. 
 of a forwarder, .SM4, 335. 
 of the owner of a wharf, 355. 
 of the hirer of chattels, 379. 
 for skill in business, 427-432. 
 when not implied, 441. 
 under a contract to to k boats, 4S( I. 
 by a common carrier, 432-451. 
 Incobpoee.vl Propeiitv, how pledged, 
 
 199, 200, 205, 20H, 220, 221. 
 pled,ij;o3 of equities, liens, etc., 198, 199, 
 
 221. 
 shares of stock and choses in artion, 
 
 219-221. 
 policies of insurance. 220. 
 iNCiin.iSE OR IxiKEMEXTs, accrue to the 
 
 owner, .52, 163. 
 un'ler contracts of pledge, 299, 3O0. 
 increase of herds and flocks, 3(i9, 372, 
 
 403. 
 effect of loss or destruction, 409, 425. 
 on the hire agreed upon, 375. 
 Inde.mnity, rule of damages designed to 
 
 furni.sh, 112, 677. 
 contracts designed as, by receiptor to 
 
 sheriff, 2,S-:!5. 
 of sale or return, .85, .349. 
 accej)ting trust for a third party, 100. 
 to cover expenses, 142. 
 valued loans, 154. 
 duty to furnish, 192. 
 duty towards a surety, 224, 272, 302, 
 
 310. 
 towards several creditors, 273. 
 where some of the debts are secured, 
 
 274. 
 pledge a contract of, 29s-:',ii0, 224, 232. 
 effect of appropriating llie property, 
 
 .301. 
 pledges to fulfill contracts, 303. 
 cumulative securities on a debt, 304. 
 for a usurious debt, 3os, 309. 
 
 SECTIONS. 
 
 Indemnity, design of liens, 350, 364-366, 
 420-425, 448, 449. 
 
 innkeeper's lien, 473-471-!. 
 
 bailee's lien for hire, 331. 
 
 bond of, given on stoppage in tran- 
 situ, 632. 
 Inevitable Acciijent, what is, 532-545. 
 
 specifications of, 537-544. 
 
 effect of on freight, 545. 
 
 terms considered, 546. 
 
 public enemy, pirates, robbers, 547. 
 
 ground of gcmeral rule, exempting 
 from, 54S-551. 
 
 bailees not liable for losses by, 171, 
 234-237. 
 Infants, capacity to contract, 13, 14, 126, 
 189. 
 
 contracts of hire by, 378. 
 
 contracts by, to work, 436, 437. 
 
 pledges and chattel mortgages by, 189. 
 
 liable for torts, 37>!. 
 
 right of action by, against carrier, 
 608. 
 Innkeeper, classed with bailees for hire, 
 3. 
 
 nature of their business, 4.50-454. 
 
 who are su^h, 450-454. 
 
 who are considered guests, 455-458. 
 
 delivery to, modes of, 459-461. 
 
 responsibility of, 4()2-46(i. 
 
 as qualified by statute, 467-470, 478. 
 
 duty of, to receive guests, 471, 472. 
 
 lien of, and how available, 473-476. 
 
 lien of b(jarding-house keepers, 477. 
 
 actions against, 479. 
 Inns, common law character of, 453. 
 
 combined with boarding-house, 456. 
 
 hiring accommodations in, 457. 
 Insueanci:. policies of, as collaterals, 220, 
 304. 
 
 warehouseman not liable as an in- 
 surer, 33.3. 
 
 bailee may insure, 425, 360. 
 
 by common carrier, 549. 
 
 against certain perils, 589, 605. 
 
 on freight, by carrier, 545. 
 
 insurance against sea perils, etc., 589. 
 
 against fraud, tlieft, etc.. 613, 589. 
 
 law regards proximate cause of loss, 
 ,589. " 
 Interesi', regarded as the natural in- 
 crease of property, 52, 163. 
 
 allowed by the rule of damages, 112. 
 
 to be accounted for by j^ledgee, 298, 
 300. 
 
 loans on usurious interest, 227, 308. 
 Interest Insurable, what, 360. 
 
 sheriff has, 35. 
 
 factor has, 425. 
 
 common carrier has, 605, 589. 
 
 on freight, 641. 
 
 a bailee has, 360, 425. 
 
 owner of goods has, 426. 
 
INDEX. 
 
 681 
 
 SECTIONS. 
 
 Intebplkadek, bill of when, 55. 
 
 allegations in the bill, 55. 
 IBBBSISTIBLK FoRCE, when it excuses a 
 common carrier, 532-545, 547-551. 
 when bailees not liable for losses by, 
 
 171, 2S4r-23'J. 
 Innkeepers, 464. 
 Jbttisok, contribution for, 612, 537, 596; 
 mode of settling, 612. 
 effect of losses by, .537, 545. 
 when goods are improperly stowed, 
 596. 
 Joint Bailment, duties under, 56, 169. 
 death of a joint bailee, 116. 
 remedies under, 388. 
 Joint Contracts, by carriers, 672-577. 
 not common, 572-579. 
 action of tort not based on, 658. 
 Justice, meaning of, 9. 
 modified by equity, 177. 
 equity gives remedies not supplied by 
 law, 178, 181. 
 Labor and Services, bailments for, 
 410-425. 
 different from making things to order, 
 
 41()-413. 
 title under a bailment for, 415-419. 
 bailee's special property under, 420- 
 
 425. 
 his lien, 420-424, 448. 
 mechanic's lien by statute, 449. 
 right to recover for, 443, 447. 
 care, diligence and skill, ddl 4 47. 
 Labor and Sekvices Generally, 426- 
 432. 
 personal services, 433-438. 
 delays by employer, 439, 440. 
 accepting goods made to order, 442. 
 voluntary services, 441. 
 where a man is employed in his voca- 
 tion, his implied agreement, 426- 
 432. 
 when not so employed, 445. 
 Laeceny, by finder of money or goods, 
 21. 
 by other bailees, 145. 
 by common carrier, severing parcels, 
 
 145. 
 from common carriers, 605. 
 proper action for, by owner, 660. 
 Law, rules of, not flexible, 9. 
 Law of the Road, what is, 724, 725. 
 in overtaking or passing, 726. 
 right of way — footmen, 727. 
 cars, carriages, crossings, 728. 
 applied to vessels, when, 740-744. 
 Leakage, Breakage, etc., losses by, 
 597. 
 from negligence in stowing, 598. 
 Leases, of land with stock, 415. 
 effect of contract, 372. 
 waste of premises, 403. 
 of animals to be returned in kind, 120. 
 
 SECTIONS. 
 
 Lender, for gratuitous use, 120-175. 
 who is such, 120-122, 124. 
 rights and interest of, 130-134, 170. 
 qualified by borrower's interest, 128, 
 
 129. 
 right to insist on terms of loan, 125. 
 
 138-141. 
 fraud on, 143-145; expenses, 142; 
 
 restitution, 160-175. 
 Liability, rules or degrees of, 4-9. 
 of a depositary, 43-51. 
 of mandataries, 78-86. 
 of borrowers, 135-141. 
 of warehousemen, 332-349. 
 of forwarders or wharfingers, 334, 34(), 
 
 356-363. 
 of innkeepers, 462-470. 
 of common carriers, 5.32-551. 
 of passenger-carriers, 707-723. 
 of pledgees, 234-244. 
 of special carriers, 480. 
 of public officers, 25-28, 83-85. 
 of directors of a corporation, 92-95. 
 once incurred remains, 42, 58-61, 402, 
 
 407. 
 to a third party, 58, 100. 
 to the true owner, 63, 71. 
 of pledgee in preserving pledge, 234- 
 
 244. 
 and in restoring, 298-311. 
 in what forms of action, 312-324. 
 in respect of servants, 361, 389-398. 
 of the hirer of things, 379-388. 
 by bailee where goods are insured, 
 
 425. 
 for an infant or apprentice's wages, 
 
 436, 437. 
 not waived when, 42, 58-61, 402, 407. 
 under joint bailments, 56, 116, 169, 
 
 388. 
 joint contracts by carriers, 572-579. 
 action of tort not based on, 658. 
 License, to sell liquors at retail, 451. 
 regarded as a trust, 452. 
 a loan for use resembles, 123, 138-141, 
 
 170. 
 when a hiring is like it, 377, 378. 
 Liens, a finder has no lien, 20. 
 
 taking up an estray under statute, 20. 
 salvors have a lien, 22, 23. 
 sheriff's property and lien, 3.3-35. 
 power of pledgee under, 201. 
 assignee of policies, 220. 
 rights of pledgee tmder, 245-278. 
 foreclosure of pledgee's lien, 279-297. 
 ineffectual foreclosure, 291, 292, 324. 
 for keep or pasture of cattle, 331. 
 warehouseman's lien, 350, 351. 
 wharfinger's lien, 360, 364. 
 factor's lien, 360, 365-368. 
 under a bailment for services, 420- 
 
 424. 
 to manufacture, 410, 4-47, 448. 
 
682 
 
 INDEX. 
 
 SECTIONS. 
 
 Liens, mechanic's lien by statute, 449. 
 innkeeper's lien, 478-476. 
 boarding-house keeper' s lien, 477, 478. 
 common carrier's lien, 645-654. 
 passenger-carrier's lien, 701. 
 LiGHTEKMBN, when common carriers, 
 
 499, 511. 
 LiaHTNiNG, considered an act of Go 1, 
 
 5.37, 543. 
 modern tendencies of opinion, 5.36. 
 Lights, to be carried by vessels, 734, 738, 
 
 741. 
 See Statute in Appendix. 
 Limitation, of liability by common car- 
 riers, 518-521. 
 by special contract, 552, 553, 561. 
 by public notices, 554-560. 
 liberty of contract, 562—568. 
 limitations upon, 563-569. 
 mere notice ineffectual, 500. 
 taking receipt, embodying contract, 
 
 binds, 561. 
 duty uniform and impartial, 520. 
 Limitations, Statute op, application to 
 
 a contract of deposit, 40, 41, 42. 
 gratuitous loan, 175. 
 of actions against carriers, 687. 
 stipulations limiting actions against, 
 
 557, (iS7. 
 effect of statute on pledges, 251-253. 
 right to redeem pledge, 312-316. 
 when action accrues, 321-:'.24. 
 Live Stock, transportation of, 078-687. 
 liability of carriers for, 678-083. 
 special contracts, 684, 685. 
 relation, proof, defenses, Osil, 0S7. 
 losses from proper vice of, (JS(.)-0S2. 
 leases of, 415. 
 Liveky-stable Keeper, duty in letting 
 
 01- leasing horses and carriages, 373, 
 
 374. 
 Loans, of things to be replaced, 41, 120, 
 
 121, 154. 
 of negotiable paper, 123, 196, 107. 
 for use, gratis, 120-125. 
 See Gratuitous Loans. 
 LocATio Oi'EEis, contract of, 3, 410-425. 
 
 illustrations, 417, 418. 
 Loss, of bond or note, proof of, to recover 
 
 in trover for them, 270. 
 effect of showing, on burden of proof, 
 
 62, 63, 158, ir>!), 172, 171. 
 or proof of a total failure to return or 
 
 account for, 3.54, 399, 400. 
 in suits against carriers, 611, 668- 
 
 672. 
 by whom borne, 148, 149, 171, 172, 
 
 299, 425. 
 during unlawful detention, 311. 
 proximate cause, 539-541. 
 tmder a policy of insurance, 589. 
 LxTNATic, cannot contract, 14, 15. 
 liable for losses he causes, 14-16. 
 
 sEcmoNs.- 
 Mails, contractors to carry, liability of, 
 
 485. 
 Mandatary, duty to act with care, 78— 
 
 86. 
 he is under a contract, 87-90. 
 a bank acting as, 91. 
 directors of corporations, 92—95. 
 his executory contract does not bind, 
 
 74-77. 
 misfeasance and non-feasance, 77. 
 remedies against, 96-105. 
 choice of remedies, 97, 101. 
 he is under an obligation, OS, 99. 
 accepting a trust for a third party, 86, 
 
 100. 
 trover against, by bailor, 102. 
 bailee's right of action, 103. 
 when either may sue, 104. 
 what actions owner may bring, 105. 
 burden of proof in actions against,. 
 
 1110, 107. 
 proof of conversion by, 108. 
 when trover does not lie, 109. 
 assumpsit, 110. 
 effect of recovery in trover on title, 
 
 111. 
 damages recoverable, 112. 
 forms of action, 113. 
 termination of contract by death, 114- 
 
 116. 
 by death of mandator, 117. 
 ways of terminating, 119. 
 Mandates, nature of contract, 74, 87-95> 
 subject of contract, 75, 76. 
 feasance and non-feasance, 77. 
 rule of diligence under, 78-86. 
 remedies under contracts of, 96-105. 
 burden of proof in actions relating to, 
 
 106-110. 
 effect of recovery in trover. 111. 
 measure of damages, 112. 
 termination of contract, 114-119. 
 Mandatok, who is under the civil law, 
 
 75, 76, 77. 
 his knowledge of bailee's character, .s:'.. 
 delivery to keep or return, 85. 
 right of action in assumpsit, SO, 110. 
 delivers on request, 88, 89. 
 where there is no delivery, 90. 
 delivery for a service, 90, 91. 
 committing a trust to agent.*;, 9), 92- 
 
 95. 
 his remedies against his bailee, 96—102. 
 his recovery in trover, 104, 111. 
 when trover does not lie, 109. 
 burden of proof in suits by, 106, 110. 
 damages recoverable, 112. 
 old and new firms of suit, 118. 
 termination of contract, 114-116, 119. 
 death of mandator, 117. 
 contract by letter, 118. 
 Majndatum oe Mandate, defined, :'.. 
 considered, 74^119. 
 
INDEX. 
 
 68a 
 
 SECTIONS. 
 
 Mabriagb, effect of, on bailment, 119. 
 Mabbibd Women, common law dis- 
 ability, 13, 119, 127. 
 powers of, under statutes, 13, 190. 
 Masters op Vessels, common carriers, 
 acts and contracts of, 590, 594. 
 charter-party, how enforced, 595. 
 collect freight of consignee, 592. 
 claim for demurrage, 593. 
 Measure of Damages, general rule, 
 112, 677. 
 See Damages. 
 Mechanic's Lien, an extension of the 
 
 common law principle, 449. 
 Mebgek, doctrine of, 318. 
 
 does not apply wliere a collateral is 
 taken on a debt, 318-321. 
 Ministers, contracts of — implied condi- 
 tions in, 432. 
 Minors, cannot bind themselves, 13, 14, 
 126, 189. 
 contracts for services by, 378, 436, 437. 
 pledges and mortgages by, 189. 
 liable for torts, 378. 
 right of action against carrier, 698. 
 Misfeasance, what is, 77. 
 
 distinction between it and non-feas- 
 ance, 77. 
 Mistake of Fact, effect of, depends on 
 circumstances, 117. 
 as in a misdelivery, 162, 348, 406, 627. 
 or misappropriation of goods, 70-73, 
 
 169, 311. 
 by a conductor on a train, 694. 
 by a common carrier, 627. 
 Misuser, conversion by depositary, 39, 
 40. 
 by denial of bailor's rights, 58-60. 
 by breaking packages or using articles, 
 
 67. 
 by unlawful disposition of, 70-73. 
 bv a mandatary, by misdelivery or by 
 
 a wrongful sale, 99-102, 107-109. 
 by a borrower, 125; by an infant, 126; 
 
 after a demand made, 152. 
 reasonable use by a receiptor, 32. 
 by pledgee's wrongful sale, 267, 257, 
 
 258. 
 or irregular sale, 291, 292, 324. 
 appropriation of property, 301, 311. 
 misappropriation of negotiable paper, 
 
 305, 306. 
 of power over title, 258, 267. 
 under a hiring of chattels, i579-rf»rf. 
 
 Money, carriers of, without hire, 84, 86, 
 81, 89. 
 deposit of, in court, etc., 12. 
 package not to be broken, 07, 97. 
 not to be delivered to other parties, 
 
 failure to carry and deliver, 10b, 110. 
 safe-keeping of, 81, 136. 
 
 SECTIONS. 
 
 Monet, action for money on deposit, 
 36, 40, 41, 175. 
 refusal to deliver, 98, 175. 
 
 deposit of at an inn, 461. 
 
 carriers of money, 503, 516, 520, 529, 
 530, 565, 567. 
 
 what amount may be carried as bag- 
 gage, 529, 530; kept in a parcel, 57; 
 undervaluing amount, 567, 530. 
 
 losses in a stateroom, 571. 
 
 in palace car, 571. 
 
 under statutes, 554-556, 557-5-59. 
 
 limiting amount of liability, 561, 565. 
 
 must be duly delivered, 526, 528. 
 
 loss of, in hands of a passenger, 687. 
 Mortgages, of real estate, 178. 
 
 See Chattel Mortgages. 
 MuTUUM, nature of contract, 120. 
 
 valued loans, 154. 
 Navigation, skill required of carrier in^ 
 603. 
 
 of a ferryman, 505-507. 
 
 with reference to the channel, 542. 
 
 in sudden storms, 544, 546. 
 
 rules of— passengers, 732-735, 741. 
 
 collision without fault, 737, 745, 746. 
 
 in passing, etc. , 739. 
 
 in carrying lights, 738. 
 
 sailing vessels meeting, 742, 743. 
 
 steam-vessels, 744. 
 
 effect of not obeying statute, 747-749. 
 
 master's duty and authority, 750. 
 Negligence, degrees of, recognized, 5-7. 
 
 criticised and recognized, 7. 
 
 rendering depositary liable, 43-51. 
 
 or mandatary, 78-83. 
 
 slight negligence, what, 6, 135-137. 
 
 ordinary negligence, what, 6, 234-244, 
 ,329-345. 
 
 gross negligence, what, 6, 43, 78-85. 
 
 gross not the same thing as fraud, 47. 
 
 in a bailee for hire, 329-333, 344, 345, 
 359, 384, 426, 444. 
 
 in a pledgee, 234r-244. 
 
 in a quasi-carrier, 480. 
 
 in a telegraphic company, 486-494. 
 
 in an innkeeper, 462-^66. 
 
 in a common carrier, 532-551. 
 
 in a passenger carrier, 707-731, 732- 
 750. 
 
 of a man in his calling, 426. 
 
 of professional men, 427-432. 
 
 of trustees and agents, 92-95, 84, 77. 
 
 is failure in duty, 3-5, 6-9. 
 Negotiable Paper, conversion ot, y». 
 
 effect of a deposit of, 11. 
 
 action of trover for, 36, 270. 
 
 collection by a bank, 77, 90, 91. 
 
 by an express company, 90. 
 
 engagement to pay at a bank, 89. 
 
 loan of, for accommodation, l2^, l<iy, 
 305 
 
 pledges of, 176, 196, 197, 205, 222. 
 
684 
 
 INDEX. 
 
 SECTIONS. 
 
 Negotiable Paper, endorsing over 
 note secured by a mortgage, 185. 
 
 i-iL;lii (o make pledge of, 191, 192, 193, 
 I'.IO, 197, 205, 222. 
 
 pledgee's duty in preserving, 2;;8-244. 
 
 collaterals to be given up on payment 
 of note secured by, 2')H. 
 
 collaterals not to be sold, 25"?, 258, 20-'). 
 
 pledgor may sell, 2118; collection of, 
 269. 
 
 borrowing on note with pledge, 28:3, 
 284, 304, 305. 
 
 drafts against consignment, 288-290. 
 
 pledgee may not sell, 2'.i:!. 
 
 must account for interest on, 300. 
 
 rights of purchaser or advancor, 304- 
 308. 
 
 merger of in higher security, 318. 
 
 creditor's failure to preserve and ap- 
 ply, 319. 
 
 or collect, 320. 
 
 effect of a bar of the debt, 321-324. 
 
 express earners of assuming to collect, 
 etc., 516, 607. 
 
 common carriers of, 529, 554, 55.5-500. 
 NoN-DELivEBY, On demand, when con- 
 version, 42, 5.s-(}4, 353, 377. 
 
 or failure to return — by depositary, 
 29, 30, 54-64. 
 
 by mandatary, 96-119. 
 
 by borrower, 160-175. 
 
 by pledgee, 298-300, 301-311, 312-324. 
 
 by hirer, 400, 4l)5-4(l'.l. 
 
 or bailee for labor and services, 417- 
 419, 424. 
 
 by common carrier, 615-633. 
 
 by innkeeper, 460-407. 
 
 by wareliouseman, 348, 349, 353. 
 
 by wharfingers, 362. 
 Non-feasance, wliat is, 77. 
 
 by agents and trustees, 84. 
 
 tmder a gratuitous promise, 86. 
 
 under a trust, 88-95. 
 
 by a servant, 3'.iii-3lis, 
 Notes axu Bills of ExciiAxciE. 
 
 See Negotiable Paper. 
 Notice, effect of carrier's notice, 506, 
 567. 
 
 may become parcel of a contract, 560. 
 
 considered from, 554-560, 567-56! I. 
 
 use of, to prevent fraud, 567, 569. 
 
 not a basis to raise an implied contract 
 on, 5.54-5(iil. 
 
 nq assent to presumed, 560, 569. 
 
 on tickets not binding;, ."j(>0. 
 Notice of Sat.i:, in ffjrcclosure. 278-287. 
 
 affected by agreement, 2s3-2.s(l, 288. 
 
 where the title is trauaferrcd, 289- 
 293. 
 Notice to Pbodikf.; papers, when not 
 
 required, ■'>>'), 270. 
 Nudum Pactum, effect of, 24, 87-01. 
 
 gratuitous loans, 128-134. 
 
 SECTIONS. 
 
 Officers, liability of, for failure in duty, 
 
 483-485. 
 sheriffs, receiptors, 25-35. 
 of corporations, 92-95. 
 deposits left with, 41. 
 Onus Probandi, in actions against a de- 
 positary, 62-64, 70. 
 respecting right to use, 6.5-70. 
 respecting the title, 63, 71-73. 
 in actions against a mandatary, 106- 
 
 110. 
 in actions against a borrower, 155-159. 
 respecting duty of restitution, 160-169. 
 under bailments for hire, custom, 341, 
 
 354, 399-402, 524. 
 injury and subsequent loss, 346, 407. 
 misdelivery, 348, 406. 
 against innkeepers, 465, 466, 479. 
 against common carriers, proof of 
 
 delivery to, 523-531. 
 presumed liability, 548-551, 561, 604- 
 
 607. 
 under a bill of lading, 561. 
 contract implied, agent, son, servant, 
 
 576. 
 respecting through contracts, 577-583. 
 receipt in bill of lading, 585, 640. 
 under exceptions in, 586-591. 
 respecting freight and demurrage, 59^ 
 
 594. 
 delays, losses and damages, 608-614. 
 delivery by carrier, 615-633. 
 rests on which party, 6(J8-(J71. 
 under special contracts, 672, 687. 
 proof of negligence, 711-715. 
 contributory negligence, 716-721. 
 intoxication, racing, etc., 722, 723.' 
 Ordered Goods, when titles passes, 412, 
 
 413, 623, 643, 590, 370. 
 goods delivered on trial, 85, 124. 
 loaned to be returned in kind, 120, 
 
 121, 370. 
 agreements to pay in goods, 164-168. 
 .sales of goods on a condition, 188. 
 delivery in anticipation of loan, 233. 
 sale of goods in the hands of a bailee, 
 
 347. 
 goods to be returned or paid for, 349, 
 
 3S7. 
 to be manufactured on shares, 416- 
 
 418, 447. 
 goods ordered to be made, 411, 412, 
 
 Ordinary Diligence, what is, 4, 5. 
 
 by a pledgee to preserve pledge, 234- 
 
 244. 
 by a liirer to preserve chattels, 328- 
 
 330, 3S4. 
 by an infant hirer, .'HS-oSil. 
 by the bailee's sei-vants, .389-308. 
 in restoring the goods, 400-409. 
 by a bailee for services, 444. 
 required of special carriers, 48ii, 517. 
 
INDEX. 
 
 685 
 
 SECTIONS. 
 
 Ordinahy Uiligbnce, by common car- 
 riers imder special contracts, 554- 
 560, 562-569, 598, 604-609. 
 diligence required of gratuitous bailee, 
 
 43-51, 78-85, 92-95. 
 diligence required of a borrower, 135- 
 137. 
 Okdinaby Neglect, what is, 4, 5, 234^ 
 237, 311. 
 under a contract of hire, 329, 330, 384. 
 in storing goods, 333, 342-346. 
 by a forwarder, 332-335. 
 by a wharfinger, 356-362. 
 OwNEK, when charterer so considered, 
 558, 559. 
 charterer's right to freight, 653. 
 under charter party, 595, 653. 
 OwNBKSHip, presumed in favor of deposi- 
 tor, 54-58, 63. 
 rights resulting from, 69-73. 
 acts and events affecting, 119. 
 when changed by judgment and satis- 
 faction, 111, 174. 
 transferred pending bailment, 347. 
 effect of bailment upon, 18, 19, 120, 
 
 121, 176. 
 of a bailment for services, 410^15, 
 
 419, 447. 
 under a chattel mortgage, 179-188. 
 under a pledge, 176, 186, 191, 209-219, 
 249, 279. 
 Packages, not to be opened, 97, 98. 
 Pacemg, fault in, does not relieve carrier, 
 
 599. 
 Pabtial Enjoyment, of things bor- 
 rowed, 12,S-134. 
 of things hired, 375. 
 Pakties, death of parties to a bailment, 
 114-119. 
 competent to contract, 13, 17, 126. 
 married women, 13, 127, 190. 
 non compos mentis, 14. 
 infants as, 14, 189, 378. 
 imbecility of mind, 15. 
 from intoxication, 16. 
 relation towards each other, 173. 
 property in parties to a pledge, 245- 
 
 278. 
 parties to action against carriers, bb5- 
 
 667. 
 Paetnbkship, between common carriers, 
 
 572-579. 
 action of tort not based on, 658. 
 Paet-pbbfobmance, of contract for 
 work, 437, 438, 439. ,„„ ,,. 
 
 effect of, on right to recover, 43^1. 
 Passage Money, paid in advance, 639. 
 Passengees, see Carriers of Passengers. 
 Pawnee, see Pledgee. 
 Pavfnob, see Pledgor. 
 Pawns, see Pledges. . vt f« 
 
 Payment undbb Pbotest, of freight to 
 a carrier, 521. 
 
 SECTIOKS. 
 
 Payment under Protest, to gain pos- 
 session of goods, 521, 640. 
 Payment, in specific articles, 164-168. 
 
 of debt secured by pledge, 230, 296, 
 309-311. 
 
 of debt secured by mortgage, 183. 
 
 how applied on several debts, 273, 274, 
 
 on demand, 41, 231. 
 
 of freight by consignee, 591-593. 
 
 demand of, on a secured note, 256. 
 
 applied to relieve surety, 272. 
 Penalty, cannot be stipulated for, 250, 
 
 298. 
 Pensions, not to be mortgaged or pledged, 
 203. 
 
 when capable of being pledged, 204. 
 pEBiLS OF Ska, Lake or Kivbb, what 
 are, 586. 
 
 exemptions from, .586-589. 
 
 jettison, contribution for, 587, 612. 
 
 collision of vessels, 546, 737, 745. 
 Perishable Goods, lost by carrier's- 
 fault, 597, 598. 
 
 from bad packing, 599. 
 
 natural decay, 598. 
 
 duty to send forward, 609. 
 
 losses from the nature of the property, 
 679-686. 
 
 proper vice of live stock, 680-682. 
 Physicians, contracts by, 427, note 77. 
 
 malpractice, 427, 428. 
 Pilots, liabDity for conduct of, 603. 
 
 carrier must answer for, 603. 
 Pirates and Piracy, what are, 547. 
 
 carrier not liable for, 547. 
 Place op Restitution, by depositary, 
 54-62. 
 
 by mandatary, 96-102. 
 
 by borrower, 160-169. 
 
 and mode by pledgee, 298-300. 
 
 by bailees for hire, 400, 405-409. 
 Pleadings, in different actions, 96-105. 
 
 affecting burden of proof, 86, 106-113, 
 155-159. 
 
 in actions to redeem, 312-316. 
 
 of interpleader, 55. 
 
 statute of limitations, 251-253, 321- 
 324. 
 
 actions against bailees for hire, 388, 
 399-409, 
 
 against carriers, 655-677. 
 Pledgee, his special property, 176, 245. 
 
 parties to the contract, 189, 190. 
 
 of equities and liens, 198-201. 
 
 incorporeal things, 205-208. _ 
 
 under written evidence of title, .ioy- 
 
 223 
 rights dependent on original contract, 
 
 224—233 
 duty in preserving pledge, 234-244. 
 property of pledgee, 245-278. 
 right to sell or foreclose, 279-297. 
 duty to restore, 298-311. 
 
686 
 
 INDEX. 
 
 SECTIONS. 
 
 Pledgee, remedies in equity against liim, 
 312-316. 
 
 Ills remedies in equity, 319-324. 
 Pledges, definition of, 3. 
 
 riglit to malie, considered, 191-201. 
 
 of another's property, 192-194. 
 
 under factors' act, 194, 19.5. 
 
 of negotiable paper, 196, 197. 
 
 of equities and liens, etc., 199, 200, 
 201. 
 
 of property to be created, 200. 
 
 subject of, 202; early use of, 202. 
 
 pensions or salaries, 203, 204. 
 
 incorporeal things, 211.5. 
 
 pledge or moriga,i;e, 206, 186, 188, 208. 
 
 an anticresis. 207. 
 
 hypothecation, 208. 
 
 mode of making, 209. 
 
 depends upon nature of property and 
 its situation, 210-223. 
 
 relation of, to original contract, 224- 
 233. 
 
 preservation of, 234-244. 
 
 property in, of pledgor and pledgee, 
 24.5-278. 
 
 sale or foreclosure of, 279-297. 
 
 restitution, duty of, 298-311. 
 
 remedies under contract, 312-324. 
 Pledges of Choses in Action; nego- 
 tiable paper, 196, 197, 222. 
 
 treatment of, 238-243, 293, 305, 306. 
 
 things in action, 170, 192, 193, 206. 
 
 capacity to make, ISO, 190. 
 
 pledtte of equities, 109-201. 
 
 of goods and things in action, 202-20.5, 
 206. 
 
 evidence of riglit or title, 210-218. 
 
 scrip or shares of stock, 219-222. 
 
 relation of pledge to original debt, 
 224-234, 308. 
 
 pledgee's duty in preserving, 2.34-244. 
 
 protest, suits, etc., 238-244. 
 
 property of pledgor and pledgee, 245- 
 278. 
 
 foreclosure, 270-207. 
 
 of a mortgage of a mortgage, 294, 324. 
 
 foreclosure by suit, 270, 207. 
 
 proceeds — liow applied, 2'.I0, .300. 
 
 duty to restore not to ))e waived, 298. 
 
 taking the propi'rtj , 301, 319. 
 
 •one man's property pledged for an- 
 other, 302. 
 
 to secure fulfillment of contract, 303. 
 
 cumulative securities, 304. 
 
 to secure usurious loans, 308, 224-227. 
 
 discharge of original debt, 309, 310. 
 
 remedies, 312-324. 
 
 right to redeem, 313-315. 
 
 derivative riglits, 316. 
 
 pledgee's remedy in equity, 317. 
 
 changes in form of debt, merger, 318. 
 
 pledgee's promise to collect, 320. 
 
 when action to redeem accrues, 321. 
 
 SECTIONS. 
 
 Pledges of Choses in Action; lapse 
 of time — limitation of actions, 322- 
 324. 
 Pledgi;s OB Collateral Securities; 
 subject and definition, 176. 
 
 nature of contract, likeness to a mort- 
 gage, 177. 
 
 ditference between, 178, 186. 
 
 effect of a chattel mortgage, 179. 
 
 riglit of possession under, 180. 
 
 riglit of redemption, 181. 
 
 mortgagee not bound to foreclose, 182. 
 
 mortgage, how extinguished, 183. 
 
 sale under mortgage, 184. 
 
 follows debt, an incident, 185. 
 
 difference between a deed and a mort- 
 gage of real estate, 187. 
 
 between a conditional sale and a 
 mortgage of goods, 188. 
 
 parties — and infant's contract, 189. 
 
 married women, 100. 
 
 right or power to create a pledge, 191- 
 201. 
 
 subject of pledge, 202-208. 
 
 mode of making a pledge, 209-223. 
 
 relation of pledge to original contract, 
 224-2:33. 
 
 pledgee's duty in preserving, 234^-244. 
 
 what property in pledgor and pledgee, 
 etc., 245-278. 
 
 sale or foreclosure, 279-297. 
 
 restitution, duty of, 298-311. 
 
 remedies under contract of pledge, 
 312-324. 
 Pledgor, retains title, 176, 186. 
 
 right or power to create a pledge, 191- 
 201. 
 
 of personal property, 202-208. 
 
 mode of making a pledge, 209-223. 
 
 relation of pledge to original debt, 
 
 right to have same preserved, 234r-244. 
 property of pledgor, 245-278. 
 foreclosure of his interest or title, 
 
 279-207. 
 right to demand restitution, 298-311. 
 his remedies for refusal or negli-ct, 
 
 312-324. 
 Possession, when it follows the title, 30, 
 
 180. 
 evidence of title, 37. 
 sufficient to establish bailor's title, 
 
 and right, 54-58. 
 present right of, in owner gives the 
 
 action of trespass or trover, 38, 39. 
 required to preserve lien, 201, 223, 
 
 269. 
 of innkeeper, 473—176. 
 of carrier, 645-(;54. 
 Post-Office, character of, 483-485. 
 
 carrying mails, 485. 
 Postmasters, duties and liabilities of, 
 
 483. 
 
INDEX. 
 
 68T 
 
 „ SECTIONS. 
 
 POSTMASTBKS, loCal, 4S4. 
 
 Pkecakious Loans, what are, 12.!, 133 
 
 134, 170. ' 
 
 Pbescbiption, pledgee gets no title bv 
 
 151-l.-ja, 312, 313-315, 251-253. 
 
 appropriation by mortgagee or pledgee, 
 
 oOl. 
 statute of limitations, 321-324, 251, 
 253; note to section, 202. 
 PKESENTjrENT, of bills and notes, 240. 
 duty to make, and protest, 240. 
 duty to preserve security, 240-244. 
 See Negotiable Paper. 
 PBEsuMPTioisrs, respecting place and 
 mode of returning borrowed goods, 
 160-169. 
 or pledges, 298-307. 
 determine the burden of proof, 354. 
 
 399^02. 
 against common carrier, 548-551, 577, 
 
 668-672. 
 of a through contract, 577-584. 
 against innlceepers, 479. 
 against bailee for hire, 620. 
 under special contracts by common 
 
 carrier, 672. 
 See Evidence, Biu'den of Proof, and 
 Onus Probandi. 
 Price of Hike, when right to recover 
 
 ceases, 375. 
 Pbistcipal, and Subety; contract of 
 pledge like a suretyship, 224. 
 effect of payment or tender of debt, 
 
 230. 
 a pledge treated as a security, 232. 
 notes held as collateral, 238, 239. 
 treatment of collaterals, 240^-244. 
 demand of payment of note thus se- 
 cured, 256. 
 duty towards surety and others in ap- 
 plying pledge, 272-274, 295. 
 factor like a pledgee, 275-278. 
 when owner of pledge treated as 
 
 surety, 302. 
 subrogation: must resort to primary 
 fund, 310. 
 Peincipals and Agents, relation of, 2, 
 76, 91, 114. 
 a collecting agent, 90, 91, 607, 623. 
 right of countermand, 100, 134. 
 death of a mandator, 116, 117. 
 statute relating to agents and factors, 
 
 214-218. 
 authority to sell, 288 293. 
 resemblance between factor and pled- 
 gee, 275-278. 
 when carrier assumes duties of agent, 
 
 607. 
 principals liable for agents and serv- 
 ants, 389-398. 
 extent and groimd of liabiUty, 389- 
 
 398, 723. 
 liability of principal to agents, 361,722. 
 
 ■r,„ SECTIONS. 
 
 PRINCIPALS AND AGENTS, Carriers liable 
 for misconduct of agents and ser- 
 vants, 722, 723. 
 
 Proceeds, of sale of pledge, to be ac- 
 counted for, 299. 
 with income, less expenses of suit on 
 
 collaterals, 299, ,300. 
 on foreclosure of liens, 331, 476, 654 
 
 Pbofessional Men, diligence and skill 
 required of, 426-432, 444, 445. 
 
 Pbohibitoky Statute, effect of, 451, 
 
 civil damage act, 451. 
 Promise, consideration required to up- 
 hold, 24, 86-91. 
 
 where there is no direct consideration. 
 92-95. ' 
 
 accepting a trust, 95-100. 
 Promissory Notes, loan of, for accommo- 
 dation, 122, 139, 305. 
 
 pledges of, 176, 196, 197, 205, 222. 
 
 indorsing over note secured by mort- 
 gage, 185. 
 
 right to make pledge of, 191-197, 205, 
 222. 
 
 pledgee's duty to preserve, etc., 238- 
 244. 
 
 demand of note secured, 256. 
 
 pledgee may collect, must not sell, 
 257, 258, 263, 269, 293. 
 
 borrowing on, with pledge, 288, 284, 
 304, 305. 
 
 rights of purchaser or advancor, 304- 
 308. 
 
 merged in judgment on, or bond for, 
 318. 
 
 creditor's failure to preserve or collect, 
 319, 320. 
 
 See Negotiable Paper. 
 Proof; see Evidence, Presumptions, Bur- 
 den of Proof, Onus Probandi. 
 Property, nature and protection of, 70- 
 73. 
 
 cannot be acquired by a trespass, fol- 
 lowed by converting it into another 
 article. 111, 417. 
 
 strictly protected in bailments for 
 services, 410, 419. 
 
 materials delivered to have work done 
 on them, 410. 
 
 contracts to make or to sell, 411-413. 
 
 title under bailment for services, 414- 
 419. 
 
 as affected by statute of frauds, 411- 
 413. 
 
 not affected by process of manufac- 
 ture, 111, 417. 
 
 difference between a sale and a bail- 
 ment, 414-419. 
 
 fraudulent purchase, effect of, 193, 70- 
 73. 
 
 an honest purchase from a fraudulent 
 purchaser, 193-197, 307. 
 
688 
 
 INDEX. 
 
 SECTIONS. 
 
 PsoPEKTY, in pledgor and pledgee, 'Z4'>- 
 
 27S. 
 a pledge does not confer title, 249. 
 the title is reached by a foreclosure, 
 
 279-2U7. 
 no forfeiture allowed, 17(i, 250, 28.3, 
 
 288. 
 may be lost by confusion, 271. 
 sales of, under execution — pledgor's 
 
 title, 259-2(12. 
 pledgee's interest, 264. 
 mortgagor's interest, when, 263. 
 in ordered goods, when the title passes, 
 
 370, 412, 413, .590, 6i!3, 643. 
 in goods delivered on trial, 85, 124. 
 loaned to be returned in kind, 120, 
 
 121, 370. 
 agreements to pay in goods, 164-168. 
 sales on a condition, 188. 
 delivery in anticipation of a loan, 233. 
 sale of goods in the hands of a bailee, 
 
 347. 
 to be returned or paid for, 349, 387. 
 to be manufactured on shares, 41(5- 
 
 418, 447. 
 ordered made, 411-413. 
 not changed by process of manufac- 
 ture, 410. 
 Pbotest, pledgee's duty to, 240-24;3. 
 demand of a secured note, 256. 
 assignee or transferee's duty, 240-243. 
 Pkoxim.vte Cause of Loss, in the hands 
 
 of a carrier, 541. 
 deviation from due course, 539, 540. 
 imder a policy of insurance, 589. 
 Public Ekemy, exception of losses by, 
 
 547. 
 ground of the general rule, 548. 
 carrier's liability as insurer, 549. 
 chargeable at law as, 550. 
 implied stipulations, 551. 
 PuECHASEKs, from party in possession, 
 
 having no title, 70, 105, 108, 109, 
 
 387. 
 of goods in the hands of bailee, 347, 
 
 268. 
 under execution against bailor, 259- 
 
 262. 
 under execution against bailee, 264. 
 when to bear risk of losses, 48, 147- 
 
 149, 233, 235, 333, 350, 360. 
 under statute of frauds, 411-413, 665. 
 demand by, when necessary, 39, 70, 
 
 108, 109. 
 in bad faith, 105, 387. 
 of stolen goods, 70, 105, 108, 109, 387. 
 delivery to carriers for, 412, 413, 590, 
 
 636, 665. 
 under a verbal order, 665. 
 on special terms, 623, 643. 
 delivei-y of goods in bond, 216, 217. 
 in warehouse, 217. 
 under bill of lading, 590, 591, 665, 666. 
 
 SECTIONS, 
 
 QuAXTUM ilEKUiT, recovery of, 426. 
 Under a general retainer, 42(j-4:32. 
 bailee for services, 425. 
 QuASi-CAKEiERS, liability of, 480, 562, 
 
 563. 
 private carriers, 517, .562, 563. 
 Eailkoad Carbieks, liability of, 515. 
 express carriers on road, 516. 
 liability of road for losses by, 606. 
 duty to receive on reasonable terms, 
 
 518-522, 553. 
 delivei-y required to charge, 523-531. 
 actual delivery — parcels, 523, 526, 529. 
 honestly made, 530. 
 dangerous goods, 531. 
 ground of liability, 532-536, 548-551. 
 acts of God or superior force, 537, 538. 
 when no excuse, 539-543. 
 exemptions by statute, 543. 
 losses caused by an armed force, 547. 
 effect of public notices, 5.54-559. 
 English statute of 1830, relating tO' 
 
 parcels, 554. 
 statute of 1854, railway and canal 
 
 traffic act, 556, 557. 
 U. S. statute, 558-560. 
 mere notice of no effect, 560, 569. 
 receipt for goods a contract, 561. 
 special contracts, how far valid, 561— 
 
 568, 569. 
 cannot stipulate, so as to relieve com- 
 pany from its own negligence, 566. 
 receiving to carry on uniform rates, 
 
 507, 568. 
 baggage — delivery of to carrier, 570- 
 
 576. 
 checking of, 571, 572-576. 
 checking through, 572-574. 
 amount and weight of baggage, 575. 
 through lines, 577-579. 
 liability of connecting roads, 580-582. 
 through contracts, 583. 
 receipt same as bill of lading, 584, 590. 
 exemptions under, 585-589. 
 answerable for cars, engines, road, 
 
 bridges, 601-604. 
 special duties assumed, 607. 
 must carry with diligence, 608, 609. 
 damages by delay, 610, 611. 
 right of recovery by carrier, 614. 
 Raileoad Caebiees of Passengees, 
 
 character how assumed, resulting 
 
 duty, 688. 
 must carry all orderly persons, 688- 
 
 690. 
 must preserve good order, 691-694. 
 right to enforce ticket system, 692- 
 
 694. 
 ejecting passenger for want of ticket, 
 
 694. 
 starting on time, room, seats, etc.. 
 
 695, 715. 
 special accommodations, 695. 
 
INDEX. 
 
 689 
 
 sections. 
 
 Kailboad Cakriebs of Passengers, 
 
 bound for safety of depots, platforms, 
 
 approaches, 696. 
 regulating business, 697. 
 who are passengers, (i'JT, 698. 
 payment of fare, 699-701. 
 contract to carry, 702-706. 
 connections, 702. 
 through contracts, 703. 
 lex loci, 704. 
 
 exemptions from liability, 705. 
 where there is no contract, 706. 
 general liability of, 707-709. 
 for safety of cars, engines, etc., 710, 
 
 negligence, ground of liability, 712. 
 
 proof of, 712-714. 
 
 must announce the starting of train. 
 715. 
 
 and the stations, 715. 
 
 contributory negligence, 716-720. 
 
 negligence not imputed and not pre- 
 sumed, 720-72-3. 
 
 must observe law of the road, 724^ 
 728. 
 
 duties by the way — refreshments, 729. 
 
 use of tickets, 729, 7.30. 
 
 notice of danger — duty after accident, 
 731. 
 
 delivery by carrier, how regulated, 
 615. 
 
 delivery by, under a through contract, 
 616. 
 
 in the Blue Line, 687. 
 
 under the implied contract, 617. 
 
 by express carrier, 618. 
 
 by carriers by water, 619-623. 
 
 duty under statute, 624. 
 
 notice when to be given, 625, 626, 627. 
 
 reasonable time and place of, 628, 629. 
 
 must respect right of stoppage in 
 transitu, 630-632. 
 
 on payment of freight, 633. 
 
 hire or reward, 6.34r-644. 
 
 lien therefor, 645-654. 
 
 actions against, 655-664. 
 
 parties to the action, 665-667. 
 
 burden of proof in, 668-672. 
 
 damages recoverable in, 673-677. 
 
 carriage of live stock, 678-687. 
 
 goods to be carried through in the 
 same car, 687. 
 
 not liable for money not delivered, 
 687. 
 
 goods taken from by legal process, 
 687. 
 
 claim, when to be made, 687. 
 Railway and Canal Companies, Eng- 
 lish statute relating to, 519, 520. 
 
 terms and construction of, 556, 557. 
 Kecoupment, of damages, 2.57, 268. 
 
 allowed in favor of pledgee, 257, 258, 
 
 , 267. 
 
 „ SECTIONS. 
 
 JxECOUPMENT, of expenses and costs, 299. 
 Kbasonablb Time, where goods are de- 
 livered on trial, 85, 124. 
 
 to be returned or paid for, ;U9, 387. 
 
 for delivery by carrier, 619-628. 
 
 of notice of sale by pledgee, 286. 
 Eeceiptoe, receiving goods from sheriff, 
 liability of, 28-32, 35. 
 
 may permit use of property when and 
 how far, 32. 
 
 right of action by, 34. 
 Recoveev, by party in interest, 36-42. 
 
 affected by nature of suit, 96-105, 110. 
 
 injury or loss after demand, 152, 348. 
 
 for unauthorized sale of pledge, 257, 
 258. 
 
 for property after wrongful sale, 207, 
 268. 
 
 for sale of chose in action by pledijee, 
 293. Jib. 
 
 of proceeds of pledge, 299-301, 306. 
 of pledge for usurious debt, 308, 227. 
 loss during unlawful detention, 311. 
 depends upon right of property, 312- 
 
 31.5. 
 change of title by. 111, 174. 
 in equity suits, 313-320. 
 under a hiring, 371, 372. 
 recovery of hire, 375. 
 by a bailee, 386. 
 under a joint bailment, 388. 
 for acts of servants, 389-,398. 
 under special bailments, 415-119. 
 enforcing lien, 420-425. 
 of wages, etc., 436-442. 
 on fulfilling contract, 447. 
 lien on property, 448, 449. 
 against telegraph company, 404. 
 Redelivery, duty of the mandatary, 54- 
 
 58. 
 various remedies for refusal, 59-73. 
 Redemption, right of under pledge, 313- 
 
 315, 316. 
 when right of action accrues, 321, 322. 
 effect of a bar on the debt, 323. 
 mortgagor's right of, 181, 313, note, 
 
 701. 
 Remedies, against a depositary, 36-42, 
 
 54-62. 
 against mandataries, 96-105. 
 under gratuitous loans, 146-159, 169- 
 
 175. 
 under a chattel mortgage, 178-186. 
 by sale or foreclosure of pledges, 279- 
 
 297. 
 to enforce rights of parties, 312-324. 
 to enforce lien of bailee for hire, 331, 
 
 350, 364-368, 420-424. 
 under a hire of things, 369-389. 
 for the fault or neglect of servants, 
 
 389-398. 
 for failure to return things hired, 399- 
 
 409. 
 44 
 
690 
 
 INDEX. 
 
 SECTIONS. 
 
 Ebmemes, for losses and expenses, 385, 
 •'!S(1, 425. 
 
 against an innkeeper, 479. 
 
 to enforce innkeeper's lien, 476. 
 
 lien of boarding-liouse keeper, 477. 
 
 to enforce duties of postmaster, 483, 
 484. 
 
 duties of officers, 485. 
 
 to enforce duties of telegraph com- 
 panies, 4S(i— lt)4. 
 
 against common carriers, 655-664. 
 
 parties to action, (i()5-667. 
 
 evidence in, ri()S-r)72. 
 
 recovery in, 673-077. 
 
 on contracts to carry live stock, 678- 
 687. 
 
 against carriers of passengers, 688- 
 608. 
 
 respecting fare, 699-701. 
 
 the contract, 702-706. 
 
 their general liability, 707-723. 
 
 law of the road, 724-728. 
 
 their duties by the way, 729-731. 
 
 against passenger carriers by water, 
 732-750. 
 
 at common law, 736. 
 
 in admiralty, 745. 
 
 as affected lay statute, 738-749. 
 Kent, of chattels, 369-372. 
 
 recoverable on lease though buildings 
 burned, 370, 271, 409. 
 
 hire not recoverable after the things 
 hired are destroyed, 375, 40i). 
 Keshipping, right given carrier by con- 
 tract, 600. 
 
 effect of stipulation, 600. 
 Ebsponsibility, of gratuitous bailees, 4- 
 7, 43-51, 78-83. 
 
 of bailees for hire, 4-7, 234, 327-329, 
 333, 384. 
 
 of borrowers, 4-7, 135-137. 
 
 of innkeepers, 4-7, 462-466. 
 
 of common carriers, 532-536. 
 
 of special carriers, 480, 517. 
 
 of telegraphic companies, 486-494. 
 
 of sheriffs and receiptors, 2.5-35. 
 
 of public officers, 41, 483^85. 
 
 of workmen, mechanics, etc., 426-432. 
 Restitution, bailee's duty in making, 
 54, .57, 160-173. 
 
 of pledges, duty of, 298-311. 
 Kestokation, duty to make, 54, 57, 62. 
 
 after conversion, 60, 61, 407. 
 
 by mandatary, 98. 
 
 under joint bailment, 388. 
 
 by bailee for hire, 405-409. 
 Eetainee, services by attorney or coun- 
 sel under, 430. 
 
 by other persons, 420. 
 
 quantum meruit, 426. 
 Ketuen, of goods liy bailee, when and 
 where made, 54-62. 
 
 by mandatary, 96-105. 
 
 SECTIONS. 
 
 Rbtukn, by borrower, 160-169. 
 
 by hirer, 400, 401, 405-409. 
 Eevkxue Officers, seizures by, 613. 
 
 carriers must answer for, 613. 
 
 acts of government, 608. 
 Revocatiox, of authority, when, 84, 100, 
 114, 116, 117. 
 
 of license, 123. 
 
 of gratuitous loan, 134, 170. 
 
 by loss of title, 409. 
 Rbwap.d, hire, effect of, 85, 137 a. 
 Right of Accession, by owner, 163, .300, 
 403. 
 
 to real estate, 403. 
 
 insurance, 425. 
 Road, law of, 724-728. 
 Road, Bridges, Track, railway com- 
 panies liable for safety of, 602. 
 
 ROADWORTHY CoACHES, CaKS, VESSELS, 
 
 carriers's duty to furnish, 601. 
 Robbery, losses by, 43^5, 147-149, 171, 
 172, 446. 
 when bailees liable for, 4.3-50. 
 thefts from pledgee, 234r-237. 
 Route, agreed upon, effect of agreement, 
 600. 
 deviations from, 539, 540. 
 Salaries, may not be anticipated, 203. 
 Sale, contracts operating as sales, 411- 
 413. 
 affected by fraud, 254-258, 307. 
 delivery to pass title, 411-416, 590, 
 
 636, 665. 
 under statute of frauds, 411-413, 590, 
 
 636, 665. 
 of things jiledged In foreclosure, 279- 
 
 297. 
 when ineffectual, 291, 292, 324. 
 under chattel mortgage, 182, 184. 
 of pledge, when enforced, 272-274, 
 
 296, 302, 310. 
 distinction between sale and bailment, 
 
 413-419. 
 goods delivered on trial, 85, 124. 
 loaned to be returned in kind, 120, 
 
 121, .370. 
 sales on a condition, 188. 
 delivery of goods to be returned or 
 
 paid for, 349, .387. 
 order for goods to be made, 411- 
 
 413. 
 made on shares, 416-418, 447. 
 of goods in bailee's hands, 347. 
 Sale or Retuisn, effect of, 85. 
 Salvage, when allowed and for what 
 services, 23. 
 sheriff's compensation, 22. 
 Sealed Packages, how kept or carried, 
 
 67, 97, 98. 
 Seaworthiness, engagement for by o.ir- 
 rler, 601, 732, 735. 
 by insured party, 601. 
 Second Bailment, effect of, 53, 69. 
 
INDEX. 
 
 691 
 
 SECTIONS. 
 
 Secukities, treatment of, as pledges, 219, 
 220-223, 293. 
 cumulative securities, 304-307. 
 See Collateral Securities. 
 ISebvants, liability on account of, 389- 
 398. 
 liability to servants, 361, 722. 
 acts of, extent and ground of, liability 
 
 for, 389-398, 723. 
 carriers liable for misconduct of, 722, 
 723. 
 Sesvicks; see Labor and Services. 
 Shares, agreements to make on, 416-421. 
 cheese factory, 164. 
 title by, when acquired, 421. 
 Shebiff, duty to preserve wrecks, 22. 
 duty in keeping goods attached or 
 
 levied on, 25, 26, 27. 
 duty and liability of his receiptor, 28- 
 
 32. 
 special property acquired by, 33. 
 liability of, for thefts, 26. 
 or special dangers, 27. 
 right to store goods, etc. , 28, 34. 
 Shipping Acts, exemptions under, 558, 
 559. 
 losses by fire, 543. 
 
 perils of seas, rivers and lakes, 586- 
 589. 
 Ship Owners, when common carriers, 
 511-514. 
 exemptions from liability by statute, 
 
 558, 559. 
 when charterer deemed owner, 558, 
 
 559. 
 under charter-party, 595, 653. 
 must obey laws of sea, 542, 732-735. 
 Shipweeck, when a loss by perils of sea, 
 note, 587. 
 when plundered, note, 587. 
 jettison, to prevent, 587. 
 Skill, required by one's employment, 77, 
 426-432. 
 of common carrier, 602, 603. 
 of bailee for services, 444, 445. 
 Skilled Workmen, their duties, 427- 
 432. 
 physicians, 427, 428. 
 engineers, architects, etc., 429. 
 attorneys and counselors, 430, 431. 
 clergymen, ministers, etc., 432. 
 bailees in their calling, 444-446. 
 personal services, 433^1. 
 Slaves, hire of, 403. 
 
 keep and care of, note, 40o. 
 death of, note, .375. 
 increase from, 403. 
 from all property, .300. _ 
 
 Special Contracts, of deposit m bank, 
 45. 
 by depositary to keep safely, 48, 83. 
 a joint deposit, 56, 
 by a servant or agent, 70. 
 
 SECTIONS. 
 
 Special Contuacts, of mandate, 74. 
 carrying money, SI. 
 bailee's personal cliaracter, 83. 
 letting animals for their keep, 8."). 
 consideration of, 87-!) 1. 
 as a collecting agent, 91. 
 a loan which is a sale, 120, 121. 
 when not gratuitous, 124, 137 a. 
 terms of a loan, 140-142. 
 difference between conditional sale 
 
 and a mortgage, ISS. 
 pledge of a special interest, 194, 198, 
 
 199, 200, 201. 
 of incorporeal things, 202, 205. 
 mode of making a pledge dependent 
 
 upon nature and situation of prop- 
 erty, 209-223. 
 on a trust to collect, 241-244, 320. 
 covering several debts, 273, 295. 
 regulating sale of pledges, 283, 288. 
 . assignment to protect surety, 294. 
 •taking pledge, etc., on debt, 301. 
 one man's property on another's debt, 
 
 302. 
 to keep horses or cattle, 331. 
 to store or forward goods, 333-336. 
 by carrier to forward or store goods, 
 
 .340. 
 receiving goods in store or on freight, 
 
 352. 
 to forward goods, 363. 
 hiring goods for use, 369-375, 381-.3S;;. 
 when there is no bailment, 376. 
 illegal and invalid, 377, 378. 
 to make or sell, 411-413, 442. 
 to make on shares, 416, 447. 
 bailments for services, 410, 417-il9. 
 for labor and services generally, 426- 
 
 442. 
 by special or quasi-carriers, 480-494. 
 Special Contracts by Cakkieks. 
 regulating receipt of goods, 525. 
 limiting their liability ,552-595. 
 cannot impose terms, 553. 
 public notices, effect of, 554, 560. 
 English statutes, contracts under, 
 
 555-557. 
 act of Congress, scope of, 558-560. 
 receipts embodying contracts, 561, 
 
 585. 
 exemptions from liability, 562-569. 
 contracts for— how construed, 563,.564. 
 effect of notice to prevent fraud, 565- 
 ■ 569. 
 through contracts, 572, 573, 578, 58:5- 
 
 585. 
 exemptions from loss by negligence, 
 
 562-571. 
 mode of stating, 586, 663, 664. ^ 
 checks tor baggage, 560, 571, yi4. 
 parcels— mode of receiving, 5fa4, 5bT. 
 tickets as evidence of contract, o60, 
 
 574. 
 
692 
 
 INDEX. 
 
 sections. 
 Special Contracts isy Cabbiers. 
 for through freight, 577-584. 
 evidence of contract, 577, 5s:;. 
 just and reasonable conditions, 5.54- 
 
 557. 
 notices not valid unless, etc., 500, 564, 
 
 565. 
 exemptions not allowed, 562-571. 
 iniiilicil contracts, agent, son, servant, 
 
 576. 
 bills of lading, .5S4-595. 
 effect of receipt in, 5S5. 
 exceptions contained in, 586-591. 
 losses by fire, 54)i. 
 consignee paying freight, demurrage, 
 
 ')<.a, 5',):!. 
 stowage of goods, under deck, 596, 
 
 597. 
 leakage and breakage, 597. 
 duty to care for injured goods, decay, 
 
 5! IS. 
 to convey in a given time, 59s. 
 for the route, special duties, 606-611. 
 delivery under a through contract, 
 
 016. 
 packages marked C. O. D.,623. 
 to party holding the title, 629. 
 for freight, 6:U-(i44. 
 affecting their lien, 64.5-6.54. 
 evidence under special contracts, 672. 
 damages under, 676, 077. 
 for carriage of live stock, 678-687. 
 safe and sufficient cars, 079. 
 not liable for certain losses, 680. 
 general duty, osl. 
 English decisions, 682. 
 American decisions, i'lH'^,. 
 the stock contract in use, 684. 
 special contracts, effect of, 0S5. 
 qualified relation, 680. 
 special defenses, etc., 0S7. 
 relating to mode of carriage, 600. 
 verbal receipts under, 584. 
 Special Deposit, in bank, effect of, 41, 
 
 42. 
 deposit on special agreement, 48. 
 Special I'iiopekty, when it exists, 36- 
 
 a depo'jitary has, .36-40. 
 SpoNTAXi:iirs Offer, to keep, eilpct of, 
 
 50, 51. 
 Staoe-cdaciies, owners, when carriers, 
 
 502. 
 of packages, 50:1. 
 of baggage, 502. 
 notices by, 552-554. 
 carriers of passengers, 503, 708, 72.^. 
 Statutks, affecting manieil women, 1:1, 
 
 127, 190. 
 sale of pledged goods, 259-20:i. 
 affecting foreclosures, 287, 184. 
 giving a Hen for keep of horses, etc., 
 
 3:J1. 
 
 SEOTIOXS . 
 
 Statutes, to enforce or foreclose lien, 
 :!:;i, 470. 
 giving boarding-house keepers a lien, 
 
 477, 478. 
 autliorizing sale of goods in pledge, 
 
 201. 
 affecting dealings by factors, 211-218. 
 Engli.sh statute — parcels, 555-564-567. 
 railway and canal companies, 556-558. 
 relating to losses by fire, 543, 562. 
 act of Congress, exemptions by, 54:5, 
 
 558, 559. 
 shipping acts, 543, 558, 559. 
 statute relating to railways, 573. 
 rules of navigation, 7:34. 
 relating to innkeepers, 407. 
 Statute of Frauds, effect of, on trans- 
 fers with bill of lading, 590. 
 wliere goods are ordered, 410-413. 
 delivery to carrier under, 590, 630, 
 665 ; so as to charge him, 524. 
 Statute of Li.mitatioxs, affecting con- 
 tract of deposit, 40-42. 
 a gratuitous loan, 175. 
 contract of pledge, 251-2.53, 205. 
 right to redeem, 312-316. 
 when action accrues, 321-:!24. 
 right lost by laches, 322. 
 stipulation limiting right of action, 
 
 .557, 687. 
 effect of a bar of debt, secured by 
 
 pledge, 232, ;i23. 
 pledgee's remedy in erjuity, 317. 
 against bailee, 319, 320. 
 Stea.mbo.vts, common carriers, 514, 52.5- 
 529. 
 not when towing boats, 480, 562, 685. 
 as passenger carriers, 514. 
 statutes relating to, 733, 7:14, 741, 747- 
 749. 
 Stbelbow Goods, what are, 120. 
 Stock, leases of live stock, 415. 416. 
 mode of pledging scrip of, 219. 
 shares of, their identity, 256. 
 effect of a sale of, 258, 289. 
 implied right of pledgee to sell, 279. 
 mode of exercising right, 281-289. 
 who may purchase, 291, 292. 
 Stolen Pr.opiiUTY, owner may follow, 
 
 70. 
 Stoppage in Transitu, right of, 630. 
 when the right exists, 590, 631. 
 how exercised, 632. 
 Stowage, carrier's duty in stowin<; goods, 
 
 588. 
 Subrogation, surety right to, ,302. 
 Sureties, treatment of, 272, :!02. 
 Surrender op Lien, dealing with, 201. 
 want of continued possession, 22:!, 
 
 269. 
 illegality of original contract, 227, 228, 
 
 308. 
 by a wrongful sale, 257, 207. 
 
INDEX. 
 
 693 
 
 SECTIONS. 
 
 Stjbrender of Lien, not by sale of debt 
 and pledge, 266. 
 
 or by ineffectual foreclosure, 291, 292, 
 324. ' . . 
 
 factor's lien and when lost, 365-368. 
 waiver of lien by bailee, 423, 424, 448. 
 by innkeeper, 475. 
 by common carrier, 649-654. 
 Table op Contents, topics and order; 
 
 see same. 
 Taveens, equivalent to inns, 453. 
 
 See Innkeepers, 450-479. 
 Teamstebs, when common carriers, 501. 
 
 wagoners when, 501. 
 Tenant, relation to his landlord, 348, 
 
 353, 362. 
 resembles bailee for hire, 173, 348, 
 
 353. 
 cannot set up title In himself, 173, 
 
 362. 
 bailor's loss of title, 409. 
 Tender, of amount due on mortgage, 177, 
 
 183, 230. 
 of debt secured by pledge, 230. 
 after debt due secured by chattel 
 
 mortgage, 183. 
 to carrier of reasonable charges, 518, 
 
 519, 655. 
 tender under protest, 521, 640. 
 Telegraph Companies, nature of ser- 
 vice of, 486. 
 liability of, 487. 
 right to make rules, 488. 
 liability to sender of messages, 489. 
 their contract, 490, 492. 
 duty to the sendee, 491. 
 mode of proving contracts made by, 
 
 492. 
 liable for sending false message, 493. 
 measure of damages against, 494. 
 Termination op Bailment, a mandate, 
 
 114-119. 
 of a gratuitous loan, 134, 170. 
 of a pledge, 230, 309; by an infant, 
 
 189. 
 of a bailment for hire by infant, 378. 
 by death or destruction of chattel, 375. 
 of bailments for hire, 404r409. 
 Terms, legal language, 8. 
 Thbpts, by finder of chattels, 21. 
 
 by one borrowing or hiring chattels, 
 
 by a carrier severing parcels, 145. 
 liability for losses by, 26, 45, 172, 235, 
 
 333 425. 
 carrier liable for, 605, 660. 
 Through Contracts, by carriers, 5(2- 
 
 585. 
 when implied, 577-58o. 
 not implied in this country, 577. 
 English rule, 578. 
 
 proof of through contracts, 583, o84. 
 for conveyance of passengers, 703, lOi. 
 
 Through Lines, business of, 579. 
 Tickets, treated as tokens, 560. 
 
 as evidence of right, 692, 694. 
 
 as evidence of contract, 560, 574, 702, 
 703. . . . , 
 
 indorsements on tickets, 560. 
 checks given for baggage, 571, 572. 
 through tickets, 572, 573, 703. 
 treated as vouchers, 692. 
 regulations respecting, valid, 692. 
 
 700. 
 purchasing and showing, 692-694. 
 accommodations, 695, 729, 730. 
 in the cabin of a vessel, social us- 
 ages, etc., 691. 
 when not required, 698, 706. 
 coupon tickets, 703. 
 stop-over tickets, 729, 694. 
 drover's pass, 563, 705, 704. 
 stopping at regular stations, 729, 715, 
 
 624. 
 restriction in use of, 7-30, 692. 
 for state-room, drawing-room, etc., 
 
 730. 
 right respecting time, 624, 695. 
 Title, presumed, in favor of depositor, 
 
 54, 56-58, 63. 
 right of party having, 70-73. 
 by judgment and satisfaction. 111, 
 
 174. 
 effect of sales, 347. 
 acts and events working a change of, 
 
 119. 
 Torts, rights of property, general and 
 
 special, 36-42, 369-372. 
 tortious breaches of, 36^2, 53. 
 conversion and its consequences, 59- 
 
 61, 407. 
 misuser of goods, 96-102, 108, 381- 
 
 383, 402. 
 third party's rights, 97, 100. 
 conversion by a third party, 103-111. 
 trespass and trover, by whom, 105, 
 
 109, 362. 
 when a demand necessaiy, 108, 109, 
 
 362, 400. 
 recovery in trover, effect of, 111. 
 rule of damages, 112. 
 forms of action, 113. 
 misdelivery, effect of, 162, 348, 406. 
 acts of ownership, 174, 270, 301. 
 conversion by sale of notes, collaterals, 
 
 238. 
 by wrongful sale of pledge, 257, 267, 
 
 268. 
 misappropriating negotiable paper, 
 
 306, 307. 
 special property for a term, violation 
 
 of, 369-372, 420. 
 violation of, by infant, 378. 
 under a void contract, 377. 
 Towing Boats, contracts for, 480. 
 at owner's risk, 562, 563. 
 
694 
 
 INDEX. 
 
 BEOnONS. 
 
 Towing Boats, exemptions, how con- 
 strued, 503-507. 
 Tback, railway company liable for safety 
 
 of, 602. 
 Tbansfbe, of title by judgment and satr 
 isfaction, 111, 174. 
 
 of goods with bill of lading, 210, 211. 
 
 by factor with documentary evidence 
 of title, 209-218. 
 
 of negotiable paper loaned for accom- 
 modation, 122, 139, 305. 
 
 of same as a pledge, 176, 196, 197, 205, 
 222. 
 
 right to make the transfer, 191-193, 
 196, 197, 205, 222. 
 
 of a note secured by a mortgage, 185. 
 
 demand of payment of, 256. 
 
 pledgee may not make, 257, 258, 263, 
 293. 
 
 pledgor may, 268, 269. 
 
 of pledge with note for a loan, 283, 
 284, 304, .305. 
 
 rights of advancors on, 304-308. 
 
 of stocks in pledge, 219. 
 
 of choses in action, 220-222. 
 
 See Sales, Property, Negotiable Paper, 
 Collateral Securities. 
 Transshippinc;, risk from, 600. 
 Trespass, action of, when it lies, 39. 
 
 and when it does not, 101-105. 
 
 See Torts. 
 Trespasser, can acquire no title by a 
 
 wrongful act, 411, 417. 
 Trinity-House, regulations of, 741, 744. 
 
 effect and force of, 734, 741. 
 Trover, when it lies, 38, 39, 42, 96-102, 
 174. 
 
 when it does not lie, 103-105, 108, 109, 
 156. 
 
 action against pledgee, 257, 2(57. 
 
 for bonds, notes, etc., 36, 270. 
 
 against bailee for hire, 348, 353, 402. 
 
 against carrier, 660, 677. 
 
 against purchaser of stolen goods, 70, 
 105, 108, 109. 
 
 See Torts. 
 Truckmen, when carriers, 500. 
 Trust, considered personal, 95, 452. 
 
 not assignable, 4.34, 452. 
 
 effect of death, 114-117, 119, 265, 266. 
 
 pledge not personal, 266, 316, 205. 
 
 loan for use, when, 138-141. 
 Unsoundness of Mind, deprives a per- 
 son of contracting capacity, 13-17. 
 
 evidence of, 15. 
 Usage, affecting delivery to carrier, 524- 
 527. 
 
 delivery by carrier, 620, 626. 
 
 to explain bill of lading, 5S8. 
 
 when not admitted, 238. 
 
 effect of, on contracts, 588. 
 
 allows warehousemen to advance 
 freight, 351. 
 
 SECTIONS, 
 
 Usage, carriers also, 642, 643, 607, 652. 
 Use, of deposit, right of, 65-68. 
 
 of chattels under a levy or attachment, 
 
 .32. 
 of things hired, 381-383, 402. 
 of things pledged, 235. 
 UsuEioiTs Loans, securities taken on, 
 227, 308. 
 or on illegal contracts, 224-228. 
 on void contracts, 228. 
 Valued Loans, nature of, 154. 
 Variance, from pleadings under com- 
 mon law, 664. 
 from contract alleged, 664. 
 Vendee, when to bear risk of loss, 48, 
 147-149, 233, 235, 333, 359, 360. 
 delivery to, 411-413, 665. 
 Vendor, when he retains the title, 665. 
 when title passes, 412, 413, 590, 536, 
 
 665. 
 with risk of loss, 216, 217. 148, 149, 
 171, 172, 299, 425. 
 Vessels, owners of common carriers, 
 when, 508, 509. 
 disabled on voyage, 638, 639, 510. 
 See Ship-owners. 
 Vis Majoi;, what so regarded, 537-546. 
 freezing of canals and rivers, 537. 
 suspends action, 537. 
 when it does not excuse, 538, 541. 
 Voluntary Services, no action for, 
 
 441. 
 Waoonees, when common carriers, 501. 
 formerly principal carriers, 501. 
 carriers, though not constantly so em- 
 ployed, .501. 
 Waiver of Action, not presumed, 60, 
 61, 407. 
 may be made, 42. 
 not made by accepting goods after 
 
 conversion, 60, 61, 407. 
 nor by receiving goods from carrier, 
 
 640. 
 of right to redeem, 322. 
 Waiver or Dama(;es, 440. 
 
 by prior agreement, 562-566. 
 unless demand is promptly made, 687. 
 or condition, complied with, 488. 
 Waiver op Lien, how made, 223, 260, 
 423, 475. 
 by release of property, 423, 424, 448. 
 Wabehousemen, business of, 332. 
 care required of, 333. 
 when forwarders and carriers, 334— 
 
 337. 
 carrier when liable as, 336-341. 
 when duties begin, 352. 
 receiving or delivering goods, 343. 
 liable for servants, liii. 
 for safety of warehouse, 344, 345. 
 liability and to whom, 346-349. 
 warehouseman's lien, 350. 
 may receive goods and pay freight,351> 
 
INDBX. 
 
 695 
 
 SBOnONS. 
 
 ■Wakehodsembn, receipts of grain, use 
 of, 352. 
 must redeliver — title, 353. 
 burden of proof, 354. 
 Way-bill, or bill of lading, entry upon, 
 503, 570, 558, 553, 527, 528. 
 use of bill or receipt, 584. 
 as evidence, 585. 
 Whabfingeb, duties and liabilities, 356- 
 363. 
 like and unlike warehouseman, 356. 
 not liable as a carrier, 358. 
 how far liable, 359. 
 where gooJj are insured, 360. 
 
 SECTIONS. 
 
 Whakfistgee, liability for servants, 361. 
 duty to return — title, etc., 362. 
 contracts by, to forward, 363. 
 lien, nature and extent of, 364. 
 Whabves and Pibes, public and private, 
 
 355. 
 Wife, as agent of her husband, 13, 119. 
 rights under present law, 13, 127, 
 190. 
 Wrecks, sheriff to take care of, 22. 
 
 saving property from sea perils, 23. 
 Wkongfxjl Acts of third parties, car- 
 riers liable for, 613. 
 and have remedy for, 614. 
 
KF 9^0 E26 1893 
 
 
 Author 
 
 Edwards, Isaac 
 
 Vol. - 
 
 Title 
 
 A Treatise on the law of 
 
 1 JT~,^«4-„ ^^^4-^^^^^ 
 
 Copy 
 
i I 
 
 1^- 
 
 I